[2020] KEELC 1235 (KLR)
The appeal was dismissed for want of prosecution because the appellant failed to file written submissions as directed by the court. The court emphasized that it is incumbent upon an appellant to substantively urge their grounds for appeal and not merely state them without supporting arguments. The absence of...
Source-derived case information.
- Citation
- [2020] KEELC 1235 (KLR)
- Parties
- Appellant: Lydia Njeri Kiprop; Respondent: Geoffrey Pkite Mosol
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 6 of 2019
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Appeal Dismissal, Want of Prosecution, Prima Facie Case, Land Registration, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Njeri Kiprop
Appellant
Geoffrey Pkite Mosol
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in law and fact in dismissing the application dated 25/2/2019.
- 2 Whether the trial magistrate failed to appreciate the provisions of Section 93(3) of the Land Registration Act.
- 3 Whether the appellant established a prima facie case.
Ratio Decidendi
The appeal was dismissed for want of prosecution because the appellant failed to file written submissions as directed by the court. The court emphasized that it is incumbent upon an appellant to substantively urge their grounds for appeal and not merely state them without supporting arguments. The absence of submissions meant there was no evidence or argument before the court to justify overturning the trial magistrate's decision. The court found that failure to prosecute a substantive appeal is a more serious default than in interlocutory applications, as it seeks to overturn a final decision. Consequently, the appeal could not be allowed in the absence of prosecution.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The instant appeal is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT
AT KITALE
ELC APPEAL NO. 6 OF 2019
LYDIA NJERI KIPROP................................................................................................APPELLANT
VERSUS
GEOFFREY PKITE MOSOL..................................................................................RESPONDENT
Being an Appeal against the Ruling of the Honorable Resident Magistrate M.N. WAFULA
at Kapenguria Land Case No. 2 of 2019 delivered on 26/9/2019
JUDGMENT
1. What is before me for determination on Appeal is a matter which was heard and a Ruling delivered by the Hon. M.N. Wafula R.M; in the Principal Magistrate’s Court at Kapenguria in Land Case No. 2 of 2019 where the learned trial Magistrate, upon hearing counsel on her application by way of Notice of Motion dated the 25/2/2019, delivered her Ruling on the 26/9/2019 dismissing the Applicant’s Application with costs to the Respondent.
2. The Appellant, being dissatisfied with the judgment of the trial magistrate has filed the present Appeal before this court.
3. The grounds which the Appellant has raised in his Memorandum of Appeal include:
(1) That the learned trial Magistrate erred in law and in fact when she dismissed the application dated 25/2/2019.
(2) That the learned trial magistrate erred in law when she failed to appreciate the provision of Section 93(3) of the Land Registration Act.
(3) That the learned trial magistrate erred in law and in fact when she held that the Appellant had not set out a prima facie case.
(4) That the leaned trial Magistrate erred in law and in fact when she held that the appellant had to be the legal owner to establish her claim.
4. The Appellant thus sought for this appeal to be allowed and the ruling be set aside.
5. On 11/3/2020, this Appeal was admitted to hearing and the court gave directions that the appeal be heard by way of written submissions wherein the respondent filed his submissions on 3/6/2020.
6. I have perused the court file and found that there are no submissions for the Appellant. For this reason I consider that the appellant has not prosecuted his appeal.
7. I therefore have nothing as evidence to demonstrate to me that the appeal should be allowed as prayed by the appellant. I must state at this point that it is much worse where an appellant defaults in filing submissions to a substantive appeal than where submissions are not filed in an interlocutory application. This is principally because an appellant must be considered to be attempting to secure orders that will result in the overturning of the impugned decision, and it is incumbent for him or her to substantively urge his grounds and not just throw them at the court and leave it at that.
8. In view of the foregoing, I hereby order that the instant appeal is dismissed for want of prosecution.
Dated, signedanddeliveredatKitale via electronic mail on this 4thday of September, 2020.
MWANGI NJOROGE
JUDGE, ELC, KITALE.