[2020] KEELC 217 (KLR)
The court found that the appellant had indeed filed her submissions as required, and this was evidenced by the email correspondence acknowledging receipt by the court. The absence of the submissions in the physical court file was not attributable to the appellant. Since the appeal was dismissed for want of...
Source-derived case information.
- Citation
- [2020] KEELC 217 (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 and Land Appeal 6 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Judgment
- Outcome
- Application for review allowed; judgment set aside; appeal to be determined on merits.
- Legal Topics
- Review of Judgment, Dismissal for Want of Prosecution, Filing of Submissions
- 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 / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether there is sufficient evidence to warrant review of the judgment entered on 4th September, 2020.
- 2 Whether the appellant's submissions were properly filed and considered by the court.
Ratio Decidendi
The court found that the appellant had indeed filed her submissions as required, and this was evidenced by the email correspondence acknowledging receipt by the court. The absence of the submissions in the physical court file was not attributable to the appellant. Since the appeal was dismissed for want of prosecution despite the appellant's compliance with the court's directions, there was sufficient ground to review and set aside the judgment. The court exercised its discretion to allow the application for review, set aside the judgment of 4th September, 2020, and directed that the appeal be determined on its merits based on the submissions on record.
Court Disposition
Application for review allowed; judgment set aside; appeal to be determined on merits.
Orders
- The judgment entered on 4th September, 2020 is set aside.
- The appeal shall be determined on its merits based on the submissions on record.
Full Case Text
Judgment text and source record
23 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
RULING
1. By a notice of motion dated 10/9/2020 and filed on 11/9/2020 brought under Sections 80of theCivil Procedure Act,Order 45 Rule 1of theCivil Procedure Rules. The appellant/applicant seeks the following orders:-
1. That this application be certified urgent to be heard ex-parte in the first instance.
2. That this honourable court be pleased to review its judgment and order of 4th September, 2020.
3. Costs be provided for.
2. The application is supported by affidavit of the appellant’s counsel sworn on 10/9/2020. The application is grounded on the following grounds: that the appellant’s appeal was dismissed for want of prosecution; that the appellant filed her submissions to the appeal on 20th April, 2020 and that it is necessary and in the interest of justice that the orders sought be granted.
Submissions
3. The court directed that the appeal be disposed of by way of written submissions. The appellant filed her written submissions on 20/10/2020. The respondent did not file any submissions.
Determination
4. The issue that arises in the instant application is whether there is sufficient evidence to warrant the review of the judgment on record.
5. I have considered that the application is unopposed. I have also called for the record of the electronic mail communications concerning the filing of submissions and found that an email forwarding a soft copy of the submissions was sent to the court’s email address on 24/4/2020 at 11:46 am and acknowledged by the court on the same date at 12:00 pm. There is however no explanation to date why the said submissions never reached the court file.
6. I am persuaded that there is good ground to set aside the judgment entered on 4/9/2020 in this matter. I hereby set aside the said judgment and I hereby order that the appeal shall be determined on its merits on the basis of the appellant’s submissions whose copy has been availed to court in support of the application dated 10/9/2020 and the respondent’s submissions dated 3/6/2020 which are in the record. By virtue of this ruling the application dated 7/7/2020 seeking costs of the appeal is deemed as overtaken by events and is therefore marked as dispensed with. This appeal shall be mentioned on 27/1/2021 for further directions.
It is so ordered.
Dated, signedanddeliveredatKitale via electronic mail on this 17thday of December, 2020.
MWANGI NJOROGE
JUDGE, ELC, KITALE.