[2017] KEHC 8764 (KLR)
The court found that, based on the pleadings and proceedings, the matter had been active and there was no sufficient basis to conclude that the appellant had abandoned the appeal. Given the nature of the dispute, which concerns land and inheritance, and in the interest of justice, the court held that the parties...
Source-derived case information.
- Citation
- [2017] KEHC 8764 (KLR)
- Parties
- Appellant: John Ikhuta Mulalu; Respondent: Kassim Amukowa Mulalu
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 22 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- NA Matheka
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Land Inheritance Disputes, Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Ikhuta Mulalu
Appellant
Kassim Amukowa Mulalu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay by the appellant.
- 2 Whether the matter has been active and if the delay is justified.
- 3 Whether it is in the interest of justice to allow the appeal to proceed to full hearing.
Ratio Decidendi
The court found that, based on the pleadings and proceedings, the matter had been active and there was no sufficient basis to conclude that the appellant had abandoned the appeal. Given the nature of the dispute, which concerns land and inheritance, and in the interest of justice, the court held that the parties should be afforded a full hearing. The application to dismiss the appeal for want of prosecution was therefore without merit and was dismissed. The appellant was directed to fix a hearing date for the appeal within 30 days.
Court Disposition
application dismissed
Orders
- The application to dismiss the appeal for want of prosecution is dismissed with costs.
- The appellant is to fix a hearing date of the appeal in the registry within the next 30 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT OF KENYA AT KAKAMEGA
ELC APPEAL NO 22 OF 2014
FORMERLY CIVIL APPEAL NO. 69 OF 2010
JOHN IKHUTA MULALU ……………….APPELLANT/RESPONDENT
VERSUS
KASSIM AMUKOWA MULALU ………...RESPONDENT/APPLICANT
RULING
The Application is dated 26th February 2015 and seeks the following orders;
(a) That the appeal filed on 30th September, 2010 be dismissed for want of prosecution.
(b) That the costs of this application be provided for.
The application is supported by the grounds therein and the annexed affidavit of KASSIM AMUKOWA MULALU. The applicant submitted that the appellant/respondent filed his appeal way back in 2010 and has not moved court or made efforts to fix his appeal for hearing. The appellant delay clearly shows that the appellant/respondent is not interested in having this appeal determined and or settled. That it will be in the interest of justice if this appeal is determined.
The Appellant/ respondent submitted that this case concerns a parcel of land that his father purchased from PAUSTINA AUMA when they were still children which parcel was left to them as their inheritance by their late father.
That one John Kulitu is the son of the individual who sold the parcel to their father and the land was sold when he was a small boy. Before their father died he gave them each a piece of the said land and each of them build their homes and settled with their families. Sometime in June, 2012 the applicant/ respondent went to the lands office at Kakamega and colluded with the land offices there to remark the old boundary that existed between his parcel of John Kulitu’s parcel. The lands officers with the help of the area Assistant Chief forcefully moved the boundary into his parcel and even in the place he built his home. The said John Kulitu is now tilling his land forcefully and is converting it into his own. Together with the applicant/respondent they are now forcing him to move away from his land. The area Assistant Chief even attempted to have him arrested but the DO intervened and stopped him. He has lived on this parcel all his life and if there is an issue it can be settled in court. The respondent/applicant is seeking that the appeal be dismissed instead of taking it all the way to hearing. The appeal has always been active, a fact that is well in the respondent’s/ applicant’s knowledge and for that matter the respondent must never be allowed to rely on falsehoods to gain an advantage over the appellant.
The court has considered both the applicant/respondent’s and the respondents/appellant’s submissions. From the pleadings and proceedings in the file it would appear this matter has been active. Indeed this matter concerns land and it is in the interest of justice that the parties be given a change at the full trial. The current application was filed way back in 2015 and has never been heard. I find coming for hearing at this stage it has no merit and dismiss it with costs. The Appellant is to fix a hearing date of the appeal in the registry within the next 30days.
Cost of this application to be in the cause.
Orders accordingly.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 9TH DAY OF MAY 2017.
N.A. MATHEKA
JUDGE