[2017] KEELC 1739 (KLR)
The court found that the application for dismissal of the appeal was premature because the last action in the matter had occurred less than a year before the application was filed, and a pending application for stay of execution was yet to be determined. The court held that the delay was not inordinate or...
Source-derived case information.
- Citation
- [2017] KEELC 1739 (KLR)
- Parties
- Appellant: Laban Muasya; Respondent: Christine Ngonyi Kiendi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 176 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal of Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Stay of Execution, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Laban Muasya
Appellant
Christine Ngonyi Kiendi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal of Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution.
- 2 Whether the application for dismissal was filed prematurely.
Ratio Decidendi
The court found that the application for dismissal of the appeal was premature because the last action in the matter had occurred less than a year before the application was filed, and a pending application for stay of execution was yet to be determined. The court held that the delay was not inordinate or inexcusable, and that the respondent's application for dismissal did not meet the threshold for want of prosecution. Consequently, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 20th May, 2011 for dismissal of the appeal is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. APPEAL NO. 176 OF 2009
LABAN MUASYA .....................................................APPELLANT
VERSUS
CHRISTINE NGONYI KIENDI ...............................RESPONDENT
RULING
1. What is before me is the Respondent’s Application dated 20th May, 2011 in which he is seeking for the dismissal of the Appeal lodged on 14th October, 2009 for want of prosecution.
2. The Application is based on the ground that the Appeal was lodged on 14th October, 2009 and no direction nor any attempt made to set it down for direction or hearing has been made.
3. In response, the Appellant’s advocate deponed that the Appellant has fixed the matter for hearing of an Application on various occasions; that twice, from July, 2011 and September, 2011, he tried to fix the Appeal for hearing but the file could not be traced and that the Appeal should be allowed to proceed for hearing.
4. I have considered the brief submissions and the authorities that have been filed by the parties.
5. The Appellant filed a Memorandum of Appeal herein on 14th October, 2009 together with an Application for stay of execution of the decree that was issued by the Magistrate in Makueni RMCC No. 94 of 2009.
6. The record shows that the matter came up for hearing of an Application dated 19th February, 2010 on 22nd February, 2010 when the same was fixed for hearing on 2nd November, 2010.
7. There is no indication as to what happened on 2nd November, 2010. This Application was then filed on 20th May, 2011, less than one year after the matter was last in court.
8. Considering that the pending Application by the Appellant for stay of execution is still pending, and in view of the fact that the current Application was filed six (6) months from when the file was before the court, I find that the Application dated 20th May, 2011 for the dismissal of the Appeal was pre-maturely filed.
9. For those reasons, I dismiss the Application dated 20th May, 2011 with no order as to costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF SEPTEMBER, 2017.
O.A. ANGOTE
JUDGE