https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4545

Kiarie v Njoroge (Environment and Land Appeal E079 of 2023) [2026] KEELC 4545 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEELC 4545 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Appeal E079 of 2023 JA Mogeni, J July 13, 2026 Between Milka Wambui Kiarie Appellant and Sammy Gathemba Njoroge Respondent Ruling 1.This Application is brought under Sections 1A, 1B, 3A & 79G of the Civil Procedure Act (Cap 21), Order 42 Rule 6, and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the Law seeking the following:1.Spent. 2.Spent. 3.THAT there be a stay of execution of the Judgment/Order of Hon. Justice Mogeni delivered on the 1st day of July 2026 pending the hearing and determination of the intended Appeal to the Court of Appeal. 4.THAT the costs of and incidental to this Application be provided for. 2.The Deponent, Lewis Kanyoko, an Advocate of the High Court of Kenya practicing under the name and style of M/S Kanyoko Lewis & Company Advocates, deposes on oath in support of the application to dismiss the Appeal for want of prosecution. The Deponent deposes and outlines what he terms as a chronic history of indolence, procedural non-compliance, and contumacious conduct on the part of the Appellant, Mary Wambui Kuria. 3.The Deponent avers that the Appellant timeously invoked the appellate jurisdiction of this Honourable Court by lodging a Memorandum of Appeal dated the 30/11/2023, challenging the Judgment and Decree of the lower Court. However, the Deponent deposes that since the lodgment of the said Memorandum of Appeal, the Appellant has failed, refused, and/or neglected to take any substantive steps toward the compilation, filing, and service of the requisite Record of Appeal, a fundamental omission that is directly contrary to the express provisions of the law. 4.Invoking statutory bars to dilatory litigation, the Deponent places heavy reliance on Order 42 Rule 35(2) of the Civil Procedure Rules, 2010. The Deponent deposes that the law explicitly mandates that if an Appeal has not been set down for hearing within one year from the date of service of the Memorandum of Appeal, the Registrar is under a statutory obligation to list the matter before a Judge in Chambers for dismissal, upon issuance of due notice to the parties. The Deponent points out that the Appellant’s Appeal falls squarely within the ambit of this limiting provision due to historical inaction. 5.To demonstrate a pattern of deliberate evasion, the Deponent further states that both the Appellant and her legal Counsel have consistently failed to attend Court on multiple scheduled occasions. This habitual absenteeism forced the Respondent to incur unnecessary expenses and utility of time by repeatedly extracting and serving several Notices of Mention upon them, as evidenced by the proofs of service and mentions recorded in the proceedings of this Honourable Court. 6.The Deponent categorizes the continuous absence and total lack of movement by the Appellant as a deliberate, calculated, and high-handed attempt to frustrate the judicial process, stall the wheels of justice, and delay the lawful execution of the lower Court's Decree. The Deponent further deposes that the Appellant's conduct is a clear manifestation of bad faith, deliberately engineered to evade compliance with the valid decision and orders of the lower Court. 7.Consequently, the Deponent avers that it is only fair, just, and equitable, and in the best interest of the administration of justice, that the orders sought in the Chamber Summons be granted to bring an end to the litigation. 8.The Application is opposed vide the Replying Affidavit sworn by the Appellant/Respondent on 2/02/2026, which serves as a direct rebuttal to the allegations of chronic indolence and procedural contumacy raised by the Respondent's Counsel, Kanyoko Lewis, Advocate. 9.The Deponent admits the factual assertion that she timeously invoked the appellate jurisdiction of this Honourable Court via a Memorandum of Appeal dated the 30/11/2023. However, she firmly joins issue with the Respondent regarding the failure to lodge the Record of Appeal. The Deponent explicitly deposes that the omission is neither deliberate nor an attempt to frustrate the wheels of justice or the Decree of the lower Court. Instead, she attributes the delay to systemic and institutional bottlenecks, specifically the administrative delay by the lower Court in compiling, typing, and releasing certified copies of the typed proceedings and Judgment. 10.The Appellant denies the Respondent’s contention that she or her learned Advocate have wilfully failed or refused to attend Court proceedings as required. She states that any instances where attendance may have been affected were due to unavoidable logistical challenges and not by any design to evade the Court’s directions. 11.The Deponent positions herself as an upright litigant who is ready, willing, and committed to complying with all directions issued by this Honourable Court. She deposes that she has made continuous, bona fide efforts to file the necessary Record of Appeal and navigate the prevailing logistical and procedural challenges. 12.Invoking the fundamental tenets of substantive justice, the Deponent submits that striking out or dismissing the Appeal at this stage would be highly premature, draconian, and inherently unjust, as it would permanently shut the gates of equity against her without an evaluation of the Appeal's merits. Particularly considering that she has taken active steps to rectify the procedural delays and ensure compliance with all requisite Court formalities. 13.The Appellant avers that she has made diligent efforts to file the Record of Appeal and to comply with all directives issued by this Honourable Court. She explains that the delays, where they have occurred, are not motivated by any ill intent but arise from legitimate challenges in obtaining necessary documentation and procedural clarity. 14.Consequently, the Deponent urges this Honourable Court to balance the scales of justice by dismissing the Respondent's application with costs. She prays for an enlargement of time to enable her to file and serve the compiled Record of Appeal once the lower Court releases the essential certified proceedings, alongside any other consequential reliefs that the Court may deem fit to grant in the interest of justice. 15.In view of the foregoing, the Appellant humbly prays that this Honourable Court:a.Dismisses the Respondent’s application seeking to strike out or dismiss the Appeal;b.Grants her sufficient time to file the Record of Appeal; andc.Issues such further or other orders as may be deemed necessary in the interests of justice. 16.The Application was canvassed by way of written submissions where the Respondent/Applicant filed submissions dated 4/11/2025 and the Appellant/Respondent filed their submissions dated 2/02/2026. 17.In brief the Applicant primarily submitted moving this Honourable Court to dismiss the Appellant's Appeal with costs on account of a total failure to file the Record of Appeal. It is submitted that despite the Memorandum of Appeal being lodged on 30/11/2023, more than two years have lapsed without any progressive steps being taken by the Appellant to secure the record, directly contravening the mandatory provisions of Order 42 Rules 1 and 2 of the Civil Procedure Rules, 2010. The Respondent emphasizes that the matter has come up for mention before the learned Deputy Registrar more than four times solely to confirm compliance, yet the Appellant and her Advocate on record have chronically absented themselves from Court, failing to offer any reasonable or justifiable explanation for the systemic delay. Consequently, the Respondent invokes the overarching principle that litigation must come to an end, asserting that the Appellant's indolence and inaction are a deliberate and calculated stratagem to frustrate the judicial process and impede the timely delivery of justice. 18.Furthermore, the Respondent strongly contends that the Appellant’s lackadaisical approach and deliberate non-compliance are comfortably buoyed by the subsistence of interim stay of execution orders issued by this Court. It is urged that the Appellant is merely exploiting the shield of these conservatory orders to avoid satisfying the lower Court's Decree, while offering no plausible explanation as to why she has completely disregarded the Court's directions issued pursuant to Order 42 Rule 11 of the Civil Procedure Rules. To prevent the abuse of the Court's process and stop the Appeal from lying in perpetuity, the Respondent humbly prays that the Appeal be dismissed with costs. In the alternative, should this Honourable Court be inclined to extend any indulgence to allow the delayed Appeal to subsist, the Respondent passionately moves the Court to immediately vacate and discharge the existing stay of execution orders to serve the interests of justice and equity. 19.On their part, the Appellant in response submits that the Respondent’s Application dated 29/07/2025, which seeks the striking out or dismissal of the Appeal for want of prosecution, is premature, legally misconceived, and a draconian attempt to extinguish the Appellant’s constitutional right to a fair hearing and access to justice. Invoking the protective mantle of Article 50 and Article 159(2)(d) of the Constitution of Kenya, 2010, the Appellant contends that the right of Appeal is a substantive right that cannot be casually defeated by procedural technicalities. It is forcefully argued that the operational statutory framework under Order 42 Rule 35 of the Civil Procedure Rules strictly regulates the dismissal of Appeals for want of prosecution, confining such a remedy to cases where an Appeal has not been set down for hearing within three months after directions under Rule 13, or one year after service of the memorandum. Because this matter remains trapped at the pre-directions stage under Order 42 Rule 11 and has not been formally admitted, the threshold for summary termination has not been met. 20.To anchor this position, the Appellant relies on the persuasive precedents of Sang & Another v Musani [2024] eKLR and George Kimani Mwangi & Another v Joseph Mworia Njoroge [2023] eKLR, wherein the High Court held that a dismissal application is fundamentally unsound and premature if directional safeguards have not been conclusively discharged or where the lower Court record has not yet been institutionalized within the appellate registry. 21.Rebutting the allegations of deliberate indolence, the Appellant states that the delay in filing the Record of Appeal is neither negligent nor intentional, but is entirely attributable to systemic bottlenecking beyond her control. The preparation of a comprehensive Record of Appeal is fundamentally contingent upon the availability of typed proceedings and a certified copy of the Decree from the trial Court, matters of which registry delays are well within the domain of judicial notice. Citing the case of Kioko & Another v Musyoki (Civil Appeal 11 of 2022) the Appellant demonstrates that Kenyan jurisprudential trends heavily favor the reinstatement or preservation of Appeals where the delay is bound to procedural challenges in securing certified copies. Since the Respondent has failed to place any material evidence before this Court proving that the Appellant intends to completely abandon the Appeal, or that the Respondent has suffered any irreparable prejudice or material loss, an outright dismissal would be highly disproportionate and an affront to the overarching tenets of substantive justice. 22.Regarding the interim stay of execution orders, the Appellant maintains that these conservatory orders were regularly granted through the sound exercise of this Court’s judicial discretion and do not wipe out her right to ventilate her grievances against the lower Court's Judgment. If the Respondent genuinely feels aggrieved by the subsistence of the stay, the proper, legally sanctioned recourse is to move the Court for a variation or discharge of the orders, rather than seeking the terminal collapse of the entire appellate file. While acknowledging the legal maxim that litigation must come to an end, the Appellant urges that it must end justly for both sides, rather than through an asymmetric and summary shut of the stable doors. Consequently, the Appellant prays that the Respondent’s application be dismissed with costs, or alternatively, that this Honourable Court extends its regulatory grace by issuing strict, time-bound conditional timelines to file and serve the Record of Appeal, thereby preserving the substratum of the Appeal for a determination on its merits. Analysis and Determination 23.From the onset, this Court identifies the solitary and crystallised issue for determination to be whether the Appellant's failure to file and serve the Record of Appeal for a period exceeding two years since lodging the Memorandum of Appeal constitutes inordinate, inexcusable, and contumacious delay sufficient to warrant the summary termination of the appellate process, or whether such delay is mitigated by institutional bottlenecks within the Court registry so as to justify an extension of regulatory grace. In navigating this question, the Court must balance the competing and equally weighty principles of the oxygen principle - which demands the efficient and expeditious disposal of judicial proceedings - against the constitutional imperative to afford every litigant an unfettered right to be heard on the merits of their case. 24.Black's Law Dictionary defines "want of prosecution" as the failure of a Plaintiff or Appellant to pursue a legal action diligently, which generates a ground for dismissal. Similarly, Halsbury's Laws of England postulates that the power to dismiss an action for want of prosecution is intended to prevent abuse of the Court’s process where there has been inordinate and inexcusable delay on the part of the litigant or their Counsel, creating a substantial risk that a fair trial of the issues will no longer be possible. In the Kenyan context, this judicial discretion is deeply anchored within Sections 1A and 1B of the Civil Procedure Act (Cap 21), which command Courts to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. In the locus classicus Ivita v Kyongo [1984] KLR 427, the Court laid down the definitive test for applications of this nature, stating that:“The test is whether the delay is inordinate, whether it is inexcusable, and whether it would cause serious prejudice to the Defendant." 25.A rigorous analysis of the Applicant’s case reveals a potent argument anchored on the maxim interest reipublicae ut sit finis litium meaning it is in the interest of the state that there be an end to litigation. The Applicant has demonstrated that the Memorandum of Appeal was timeously lodged on 30/11/2023, yet for over twenty-four months, the Appellant has failed to extract proceedings or file the Record of Appeal. Under Order 42, Rule 35(2) of the Civil Procedure Rules, 2010, the law establishes a clear statutory timeframe for listing a matter for dismissal when an Appeal lies dormant for over a year. 26.Furthermore, the record indicates that the Appellant and her Advocate on record failed to attend Court for scheduled mentions on multiple occasions, compelling the Respondent to extract and serve successive Mention Notices. This chronic absenteeism and total lack of movement cannot be lightly brushed aside. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, the Court of Appeal robustly defended the integrity of Court orders and timelines, observing that:“A Court of law cannot sit back and allow its processes to be utilized as instruments of delay and oppression against a successful litigant who holds a valid Decree in his favor." 27.Conversely, the Appellant’s opposition invokes the protective shield of Article 50 and Article 159(2)(d) of the Constitution of Kenya, 2010, asserting that the right of Appeal is a substantive right that should not be casually sacrificed at the altar of procedural technicalities. The Appellant shifts the blame for the programmatic delay from her own doorstep to institutional systemic bottlenecks, specifically the administrative delays by the lower Court registry in compiling, typing, and releasing certified copies of the proceedings and Judgment. It is well-settled law that registry delays are a matter of judicial notice and ought not to be visited upon a diligent litigant. The Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR established the definitive guiding rules regarding the enlargement of time and delay, observing that:“Deviations from regulatory timelines may be condoned if the underlying reason for delay is plausible, raised in good faith, and does not occasion uncompensable prejudice to the opposite party." 28.Weighing both sides of the scales of justice, this Court finds that while the two-year delay is undoubtedly inordinate, it cannot be characterized as entirely contumacious or unpardonable given the administrative delays inherent in securing typed transcripts from lower Courts. However, an upright litigant cannot simply sit back and take refuge in registry delays indefinitely without demonstrating proactive, written follow-ups or seeking an enlargement of time before being cornered by a dismissal application. To allow this Appeal to hang in perpetuity while the Appellant is buoyed by interim stay orders would work a grave injustice against the Respondent, who remains restricted from enjoying the fruits of their lower Court Judgment. Equity aids the vigilant and not the indolent. Summary dismissal at this juncture would be too draconian a remedy, effectively shutting the gates of justice without an interrogation of the merits. Substantive justice is best served by giving the Appellant one final, strict, and conditional opportunity to prosecute her Appeal, failing which the dynamic consequences of law must follow. 29.Consequent upon the matching analysis and findings detailed hereinabove, the Respondent’s Application dated 29th July 2025 is hereby determined through the issuance of the following orders:i.That the Respondent's Application seeking the summary dismissal of the Appeal for want of prosecution be and is hereby denied.ii.That the Appellant is hereby granted an enlargement of time of forty-five (45) days from the date of this Ruling within which to compile, file, and serve a comprehensive Record of Appeal.iii.The interim stay of execution orders currently in force in this matter be and are hereby conditionally extended for the said period of forty-five (45) days.iv.Should the Appellant fail, neglect, or refuse to file and serve the Record of Appeal within the forty-five (45) days stipulated in Order No. (ii) above from the date hereof, the interim stay of execution orders shall automatically stand vacated and discharged, and the Appeal shall stand dismissed with costs without further reference to this Court.v.Costs of and incidental to this Application are hereby awarded to the Respondent/Applicant.Orders Accordingly. DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS AT THIKA ON THIS 13TH DAY OF JULY 2026.……………………MOGENI JJUDGEIn the presence of:…………………………………………………….. for Appellant………………………………………….………….for RespondentMr. Melita - Court Assistant…………………..MOGENI JJUDGE