[2017] KEHC 9135 (KLR)
The court found that although there was delay by the respondent in prosecuting the appeal, the delay was partly attributable to the time taken by the lower court to certify proceedings. The court also noted that the subject matter of the appeal is land, and therefore the proper forum for hearing the appeal is the...
Source-derived case information.
- Citation
- [2017] KEHC 9135 (KLR)
- Parties
- Appellant: Margaret Waithira Njari; Respondent: John Njari Kagunyi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 491 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal and Declare Injunction Lapsed
- Outcome
- application dismissed; file transferred to Environment and Land Court; costs in the cause
- Judges
- BT Jaden
- Legal Topics
- Summary Dismissal of Appeal, Interlocutory Injunctions, Transfer of Jurisdiction, Delay in Prosecution, Land Disputes Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Waithira Njari
Appellant
John Njari Kagunyi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal and Declare Injunction Lapsed
Legal Issues
- 1 Whether the appeal should be summarily dismissed for want of prosecution.
- 2 Whether the interlocutory injunction granted should be declared as lapsed under Order 40 rule 6 of the Civil Procedure Rules.
- 3 Whether the High Court has jurisdiction or the matter should be transferred to the Environment and Land Court.
Ratio Decidendi
The court found that although there was delay by the respondent in prosecuting the appeal, the delay was partly attributable to the time taken by the lower court to certify proceedings. The court also noted that the subject matter of the appeal is land, and therefore the proper forum for hearing the appeal is the Environment and Land Court. The application for summary dismissal and for declaration that the injunction had lapsed was dismissed, and the file was ordered to be transferred to the appropriate court. Costs were ordered to be in the cause.
Court Disposition
application dismissed; file transferred to Environment and Land Court; costs in the cause
Orders
- The application dated 10th March 2016 is dismissed.
- The file is transferred to the Environment and Land Court.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO.491 OF 2014
MARGARET WAITHIRA NJARI......APPELLANT/RESPONDENT
VERSUS
JOHN NJARI KAGUNYI...................RESPONDENT/APPLICANT
RULING
1. The application dated 10th March 2016 seeks orders that:
“1. That the appeal be summarily dismissed
ALTERNATIVELY:
2. That the orders of injunction be declared as having lapsed.
3. That costs of this application be provides for.”
2. The application is premised on the grounds set out in the application and is supported by the affidavit of John Njari Kagunyi, the Applicant herein. The Applicant’s complaint is that orders of injunction were allowed herein on 20th February, 2015. That since then the Respondent has not taken any steps to prepare the record of appeal and have the appeal admitted. It is further stated that this is a land matter and ought to be heard by the Environmental and Land Court.
3. The application is opposed. The Respondent blames the delay herein on the lower court failure to provide her with the certified copies of the proceedings and judgment despite her request.
4. During the hearing of the application, the learned counsel for the parties opted to file written submissions. I have duly considered the same.
5. An appeal can be summarily rejected under Section 79B of the Civil Procedure Rules which provides as follows:
“Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree, part of a decree or order appealed against he may, notwithstanding section 79C, reject the appeal summarily.”
6. From the record of the lower court, it is clear that the proceedings were typed and thereafter certified on 6th November, 2015. The application at hand was filed on 15th April, 2016. The Respondent was not diligent.
7. The temporary orders of injunction were granted herein on 20th February, 2015 pending the hearing and determination of the appeal. Order 40 rule 6 Civil Procedure Rules provides as follows in respect of such orders:
“Where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise.”
8. It is noted that the appeal herein emanates from orders made by the lower court following the adoption of the award of the Land Disputes Tribunal. The subject matter is land. The appeal ought to be heard in a court of competent jurisdiction.
9. With the foregoing, the application is dismissed with costs in cause. The file is hereby transferred to the Environmental and Lands Court.
Dated, signed and delivered at Nairobi this 25th day of July, 2017
B. THURANIRA JADEN
JUDGE