[2017] KEELC 2090 (KLR)
The court found that the appellant failed to set the appeal down for hearing within the required time and did not provide sufficient cause for the delay. Notice had been properly issued to the parties in accordance with Order 42 Rule 35(2) and Order 17 Rule 2(2) of the Civil Procedure Rules. The appellant's...
Source-derived case information.
- Citation
- [2017] KEELC 2090 (KLR)
- Parties
- Appellant: Ignatius Festus Njagi; Respondent: Ausilia Samuel Mankunyu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 74 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Court Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ignatius Festus Njagi
Appellant
Ausilia Samuel Mankunyu
Respondent
Procedural Posture
Civil Appeal / Ruling on Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35(2) and Order 17 Rule 2(2) of the Civil Procedure Rules.
Ratio Decidendi
The court found that the appellant failed to set the appeal down for hearing within the required time and did not provide sufficient cause for the delay. Notice had been properly issued to the parties in accordance with Order 42 Rule 35(2) and Order 17 Rule 2(2) of the Civil Procedure Rules. The appellant's explanation for the delay was not satisfactory to the court. Consequently, the court exercised its discretion to dismiss the appeal for want of prosecution, as the procedural requirements for such dismissal had been met and no justifiable reason was provided to prevent dismissal.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC [CA] CASE NO 74 OF 2017
FORMERLY MERU ELC [CA] CASE NO. 96 OF 2013
IGNATIUS FESTUS NJAGI………………..................APPELLANT
VERSUS
AUSILIA SAMUEL MANKUNYU……………...…..RESPONDENT
RULING
1. Parties were given notice to come to court to show cause why the appeal should not be dismissed for want of prosecution.
2. Order 42 rule 35 Civil Procedure Rules, decrees as follows:
(1) Unless within three months after giving of direction under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.
(2) If, within one year after service of the memorandum of appeal the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.
3. This appeal was properly listed for dismissal after notice by the registrar to the parties.
4. The appellant told me that he had not set the suit down for hearing because he was waiting at home for the government to summon him.
5. The respondent asked the court to dismiss this appeal.
6. I find that notice had also been issued in terms of order 17 Rule 2(2) Civil Procedure Rules.
7. I find that in terms of both order 17 Rule 2(2) Civil Procedure Rules and Order 42 Rule 35(2) Civil Procedure Rules, no cause has been shown to the satisfaction of the court that the appeal should not be dismissed.
8. In the circumstances, this appeal is dismissed.
9. I issue no order as to costs.
10. It is so ordered
Delivered in open court at Chuka this 25th day of July, 2017
in the presence of:
CA: Ndegwa
Ignatius Festus Njagi - Appellant
Ausilia Samuel Mankunyu- Respondent
P. M. NJOROGE
JUDGE