[2018] KEELC 3989 (KLR)
The court found that the appellant had failed to set down the appeal for hearing for a period exceeding one year, specifically close to seven years since the appeal was admitted. The court emphasized that such delay is contrary to the requirements of Order 42 Rule 35(2) of the Civil Procedure Rules, which mandates...
Source-derived case information.
- Citation
- [2018] KEELC 3989 (KLR)
- Parties
- Appellant: Loise Kathure Mutwiri; Respondent: Marete Kamanja
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 01 of 2018
- 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, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Loise Kathure Mutwiri
Appellant
Marete Kamanja
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 inordinate delay by the appellant in setting down the appeal for hearing.
Ratio Decidendi
The court found that the appellant had failed to set down the appeal for hearing for a period exceeding one year, specifically close to seven years since the appeal was admitted. The court emphasized that such delay is contrary to the requirements of Order 42 Rule 35(2) of the Civil Procedure Rules, which mandates dismissal of appeals not prosecuted within a year after service of the memorandum of appeal. The court noted that the appeal had been pending unheard and undetermined for nearly seven years, which warranted judicial censure. Consequently, the court exercised its discretion to dismiss the appeal for want of prosecution, finding no sufficient cause for the delay.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CIVIL APPEAL CASE NO. 01 OF 2018
FORMERLY MERU ELC CASE NO. 57 OF 2012
LOISE KATHURE MUTWIRI........................APPELLANT
VERSUS
MARETE KAMANJA...................................RESPONDENT
RULING
1. Notice of Listing of Appeal before the Judge for dismissal was duly issued.
2. Mr. I.C. Mugo told the court that this court’s Deputy Registrar had never informed him if the appeal had been admitted or had not been admitted.
3. Order 42 Rule 35 (2) states as follows:
“If within one year after the 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.”
4. This Civil Appeal was filed in 2012 as Meru HCCA 57 OF 2012. It is now Chuka ELCA 1 of 2018. The appeal has been pending unheard and undetermined for close to 7 years. This is a situation that should attract judicial deprecation and veritable opprobrium. The court record shows that the appeal was admitted on 28th September, 2012, over five years ago.
5. I am satisfied that the appellant has not set down the appeal for hearing for a period exceeding one year and indeed close to 7 years. The appeal, therefore, merits dismissal.
6. In the circumstances, this appeal is dismissed.
7. It is so ordered.
Delivered in open court at Chuka this 19th day of March, 2018 in the presence of :
CA: Ndegwa
I.C. Mugo for the Appellant
P.M. NJOROGE
JUDGE