[2024] KEELC 1503 (KLR)
The court found that neither party complied with its directions to file written submissions on the application to dismiss the appeal for want of prosecution. The respondents, as applicants, bore the primary responsibility to prosecute their application and failed to do so. The court held that failure to file...
Source-derived case information.
- Citation
- [2024] KEELC 1503 (KLR)
- Parties
- Appellant: Maranatha Faith Assemblies; Appellant: Nathaniel Chenji; Appellant: Rev Elizabeth Kaingu; Respondent: Bishop Thomas C. Tembo; Respondent: Bishop George Chipa; Respondent: Emmanuel Kahindi Kaleli
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E1 of 2020
- Procedural Posture
- Environment and Land Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed for want of prosecution
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Failure to Prosecute, Written Submissions, Record of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maranatha Faith Assemblies
Appellant
Nathaniel Chenji
Appellant
Rev Elizabeth Kaingu
Appellant
Bishop Thomas C. Tembo
Respondent
Bishop George Chipa
Respondent
Emmanuel Kahindi Kaleli
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction by the appellants.
- 2 Whether failure to file written submissions as directed by the court amounts to abandonment of the application.
Ratio Decidendi
The court found that neither party complied with its directions to file written submissions on the application to dismiss the appeal for want of prosecution. The respondents, as applicants, bore the primary responsibility to prosecute their application and failed to do so. The court held that failure to file submissions as directed is a clear indication of disinterest in pursuing the application. Consequently, the application dated 4th August 2023 was not prosecuted and was dismissed with costs to the respondents. The substantive appeal remains unaffected by this ruling, as the dismissal pertains only to the interlocutory application for dismissal for want of prosecution.
Court Disposition
application dismissed for want of prosecution
Orders
- The application dated 4th August 2023 is dismissed for want of prosecution.
- Costs of the application are awarded to the respondents.
Full Case Text
Judgment text and source record
28 paragraphs
Maranatha Faith Assemblies & 2 others (Suing as the Representatives of Maranatha Faith Assemblies) v Tembo & 2 others (Suing as Representatives of Pentecostal Evangelistic Fellowship of Africa) (Environment and Land Appeal E1 of 2020) [2024] KEELC 1503 (KLR) (20 March 2024) (Ruling)
Neutral citation: [2024] KEELC 1503 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment and Land Appeal E1 of 2020
FM Njoroge, J
March 20, 2024
Between
Maranatha Faith Assemblies
1st Appellant
Nathaniel Chenji
2nd Appellant
Rev Elizabeth Kaingu
3rd Appellant
Suing as the Representatives of Maranatha Faith Assemblies
and
Bishop Thomas C. Tembo
1st Respondent
Bishop George Chipa
2nd Respondent
Emmanuel Kahindi Kaleli
3rd Respondent
Suing as Representatives of Pentecostal Evangelistic Fellowship of Africa
Ruling
1. By a chamber summons application dated 4th August 2023 and filed on 15th December 2023 and brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 35 (1) of the Civil Procedure Rules, the Respondents have moved this court to dismiss the present appeal for want of prosecution. The basis of their application is that since 9th October 2020 when the Appellants filed a memorandum of appeal and stay of execution granted, the Appellants have failed to seek directions or set up the appeal for hearing. In support of the application is the supporting affidavit sworn by Emmanuel Kahindi Kaleli on 15th December 2023.
2. The application is opposed. The Appellants filed a Replying Affidavit sworn by Nathaniel Chenji on 24th January 2024, wherein he deposed that the Appellants’ attempts to retrieve copies of proceedings before the lower court to enable them file a record of appeal have been frustrated by the relevant offices within the court; and that if given more time they will ensure that the record is ready and appeal listed for hearing.
3. On 6th February 2024, I directed parties to file written submissions in relation to the present application; the Respondents were to file and serve submissions within 7 days from the said date while the Appellants were to respond within 7 days from the date of service or in any event within 14 days from the date of the order. Undoubtedly, those days have since lapsed and there is no record of any submissions filed by either party. In the circumstances, I see no basis to address my mind to the application. Where the court has ordered an application to be heard by way of written submissions and provided no other manner of disposal, the failure to file submissions, especially on the applicant’s part, is a signal of disinterest. The application dated 4th August 2023 has thus not been prosecuted and it is hereby dismissed with costs to the respondents.
DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 20TH DAY OF MARCH 2024. MWANGI NJOROGEJUDGE, ELC, MALINDI