[2021] KEELC 4731 (KLR)
The court found that although there had been delay in prosecuting the appeal, the appellant had provided a reasonable explanation for the delay, namely the unavailability of the typed ruling and a subsequent mistake by counsel. The appellant had since filed and served a supplementary record of appeal. The court held...
Source-derived case information.
- Citation
- [2021] KEELC 4731 (KLR)
- Parties
- Appellant: Japheth Chiteri; Respondent: Brookway Nyonge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal ? of 2019
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Applications
- Outcome
- Application to dismiss appeal dismissed; application for directions and to deem supplementary record filed granted; no order as to costs.
- Judges
- NA Matheka
- Legal Topics
- Dismissal for Want of Prosecution, Status Quo Orders, Appeal Procedure, Supplementary Record of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japheth Chiteri
Appellant
Brookway Nyonge
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution.
- 2 Whether the supplementary record of appeal should be deemed duly filed and served.
- 3 Whether the appeal should proceed to hearing on its merits.
Ratio Decidendi
The court found that although there had been delay in prosecuting the appeal, the appellant had provided a reasonable explanation for the delay, namely the unavailability of the typed ruling and a subsequent mistake by counsel. The appellant had since filed and served a supplementary record of appeal. The court held that the appeal should be determined on its merits rather than dismissed on a technicality. Accordingly, the application to dismiss the appeal for want of prosecution was dismissed, and the application to deem the supplementary record of appeal duly filed and to proceed with directions for hearing was granted.
Court Disposition
Application to dismiss appeal dismissed; application for directions and to deem supplementary record filed granted; no order as to costs.
Orders
- The application dated 12th November 2020 is dismissed with no orders as to costs.
- The application dated 7th December 2020 is granted with no orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELCA CASE NO. 11 OF 2019
JAPHETH CHITERI...................................................................APPELLANT
VERSUS
BROOKWAY NYONGE...........................................................RESPONDENT
RULING
The first application is dated 12th November 2020 and seeks the following orders;
1. That the appellant appeal be dismissed for want of prosecution.
2. That the respondent he allowed to reinforce Butere SRMC order issued on 23rd November, 2018 vide No. 184 of 2001.
3. That costs of this application be provided.
It is based on the grounds that the appellant/respondent has taken no steps after the institution of this appeal since 8th April, 2019. That due pendency of this appeal has caused the applicant to suffer mental anguish and incur exorbitant costs. That the claim herein involves land which ought to be disposed off expeditiously as per the Constitution of Kenya. That it is trite law that litigation ought to be decided on merit and not on technicalities as enlisted by the respondent. That this application has been made timeously which warrants the orders sought. That the respondent has issued threats to the applicant whereof he booked the same vide OB No. 12/24/8/2020 at Butere Police Station. That appellant has not served memorandum of appeal and compiled record of appeal. That it is the interest of justice to grant the orders sought as no prejudice shall be caused to the respondent.
The appellant/espondent submitted that by the time he was filing this appeal, the ruling that he was appealing against had not been typed. That by mistake his advocate on record compiled the record of appeal without enclosing the ruling, that he has equally filed a supplementary record of appeal enclosing the ruling and served the same upon the respondent. That his appeal should not be dismissed because of mistake of his counsel.
The second application is dated 7th December 2020 and is brought under Section 1, 1A, 1B, 2, 2A, 3, 3A, 63 (e ) of the Civil Procedure Act, order 42 & 52 of the Civil Procedure Rules as read together with Article 159 of the Constitution of Kenya 2010 seeking the following orders;
1. That directions in this matter be taken.
2. That the appeal be heard in the ELC Court in Kakamega before one judge.
3. That the same be disposed off by way of written submissions.
4. That the supplementary record of appeal be deemed duly file and served upon the respondent herein.
5. That the matter be disposed off on its merit.
It is based on the annexed affidavit of Japheth Chiteri the grounds that this matter has matured for hearing. That the record of appeal and the supplementary record of appeal have been filed and served upon the respondent herein. That both parties are anxious to have this matter heard and determined on merit. That this court should allow this application.
This court has considered the applications and the submissions therein. From the record I find that the appeal was filed on the 8th of April, 2019 together with an application for stay of execution of judgment. That the court granted an order of status quo pending appeal. I find that the appellant should be given a chance to prosecute his appeal. The application dated 12th November, 2020 is dismissed with no orders as to costs. The application dated 7th December 2020 is granted with no orders as to costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 23RD MARCH 2021.
N.A. MATHEKA
JUDGE