[2018] KEELC 4120 (KLR)
The court found that the appellants had failed to file the record of appeal for over six years without any plausible explanation, in clear violation of Order 42 Rule 11 of the Civil Procedure Rules. The prolonged inaction rendered the appeal a backlog, undermined the administration of justice, and stalled the lower...
Source-derived case information.
- Citation
- [2018] KEELC 4120 (KLR)
- Parties
- Appellant: Kanampiu M’Rithara; Appellant: Grace Munjiru Kanampiu; Respondent: Julius Gituma Kirigiah; Respondent: Nanis Kagwiria Gituma
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case Case142 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Dismissal for Want of Prosecution
- Outcome
- Appeal summarily dismissed with costs to the respondents.
- Legal Topics
- Appeal Dismissal, Record of Appeal Noncompliance, Interlocutory Orders, Case Abatement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kanampiu M’Rithara
Appellant
Grace Munjiru Kanampiu
Appellant
Julius Gituma Kirigiah
Respondent
Nanis Kagwiria Gituma
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 due to failure to file the record of appeal.
- 2 Whether the prolonged inaction by the appellants justifies summary dismissal of the appeal.
- 3 Whether costs should be awarded to the respondents upon dismissal.
Ratio Decidendi
The court found that the appellants had failed to file the record of appeal for over six years without any plausible explanation, in clear violation of Order 42 Rule 11 of the Civil Procedure Rules. The prolonged inaction rendered the appeal a backlog, undermined the administration of justice, and stalled the lower court proceedings. The court held that such conduct warranted summary dismissal of the appeal with costs to the respondents, and ordered the immediate remittance of the lower court file for determination.
Court Disposition
Appeal summarily dismissed with costs to the respondents.
Orders
- The appeal is summarily dismissed with costs to the respondents.
- The lower court file is to be remitted back immediately to the Meru Chief Magistrate’s Court for determination.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 142 OF 2011
KANAMPIU M’RITHARA ……………….. 1ST APPELLANT
GRACE MUNJIRU KANAMPIU …..……..2ND APPELLANT
VERSUS
JULIUS GITUMA KIRIGIAH ……...….... 1ST RESPONDENT
NANIS KAGWIRIA GITUMA …………. 2ND RESPONDENT
RULING
1. I find that this appeal was filed way back in December 2011.
2. On 7. 12. 2017 the DR was informed by Atieno holding brief for Ndubi for respondent that appellant had died 3 years ago. She also informed the court that appellant had never filed a record of appeal. She was praying for case to be marked as abated.
3. Mr. Kaume had responded as follows: “If appeal is marked as abated, there should be no orders as to costs”.
4. Mr. Kaume was mute on issue of record of appeal. It is against this back ground that the DR referred the matter to this court to be mentioned on 21. 2.2018.
5. On 21. 2.2018, Mr. Ndubi urged the court to dismiss the appeal as no record of appeal has ever been filed. He also urged the court to find that this is a very old matter where no action has ever been taken for the last 4 years and that the appeal arises out of an interlocutory ruling.
6. Mrs. Kaume stated that the matter was slated for mention and nothing else and hence there should be no application to have the matter dismissed.
7. I find that the matter was slated for mention because of the issues that were raised before the DR. No plausible or any explanation at all has been advanced as to why the record of appeal has never been filed for the last 6 plus years.
8. This is a case whereby the appellants had applied to this court for a stay of the order of the trial court vide the application filed on 20. 12. 2011 which was disallowed on 26. 7.2013. Thereafter, nothing happened until the DR called for the file on 14. 11. 2017.
9. Sadly, nothing is happening in the lower court as the lower court file is here.
10. A perusal of the entire record indicates that the appellant has never attempted to comply with provisions of order 42 rule 11.
11. I am in agreement with the averments of the respondent that this appeal is but a back log. It is indeed cases of this nature that taint the image of the Judiciary and further public confidence is reduced.
12. It is not fathomable that the case CMCC no. 167/11 stalled for the last 6 years simply because the appellants lodged this appeal in respect of an interlocutory application which appeal, the appellants have failed to prosecute.
13. I hereby proceed to summarily dismiss this appeal with costs to the respondent.
14. Further the lower court file is to be remitted back immediately to the Meru CM’s court for determination.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 7th MARCH, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Muthoni holding brief for Ndubi for respondents
Mrs. Kaume for Appellant present
HON. LUCY. N. MBUGUA
ELC JUDGE