[2024] KEELC 6064 (KLR)
The court found that while the applicant failed to provide evidence of service of the notice to show cause to the executive officer and did not adequately explain the delay in seeking reinstatement, the respondent did not demonstrate any prejudice or dissipation of the subject matter if the appeal was reinstated....
Source-derived case information.
- Citation
- [2024] KEELC 6064 (KLR)
- Parties
- Appellant: Lawrence Murungi; Respondent: Bonface Ng’entu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 78 of 2022
- Procedural Posture
- Environment and Land Appeal / Ruling on Application for Reinstatement of Appeal
- Outcome
- Appeal reinstated subject to payment of throw away costs.
- Judges
- CK Nzili
- Legal Topics
- Reinstatement of Appeal, Right to Fair Hearing, Judicial Discretion, Delay and Indolence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Murungi
Appellant
Bonface Ng’entu
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application for Reinstatement of Appeal
Legal Issues
- 1 Whether the appeal should be reinstated after being struck out for non-compliance.
- 2 Whether the applicant has provided sufficient reasons for the delay and failure to prosecute the appeal.
- 3 Whether reinstatement would prejudice the respondent.
Ratio Decidendi
The court found that while the applicant failed to provide evidence of service of the notice to show cause to the executive officer and did not adequately explain the delay in seeking reinstatement, the respondent did not demonstrate any prejudice or dissipation of the subject matter if the appeal was reinstated. Exercising judicial discretion, the court granted the applicant the benefit of the doubt and ordered the reinstatement of the appeal, subject to payment of throw away costs to the respondent.
Court Disposition
Appeal reinstated subject to payment of throw away costs.
Orders
- The appeal is reinstated for hearing on merits.
- The appellant shall pay throw away costs of Kshs.20,000 to the respondent within 14 days.
Full Case Text
Judgment text and source record
21 paragraphs
Murungi v Ng’entu (Environment and Land Appeal 78 of 2022) [2024] KEELC 6064 (KLR) (18 September 2024) (Ruling)
Neutral citation: [2024] KEELC 6064 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Appeal 78 of 2022
CK Nzili, J
September 18, 2024
Between
Lawrence Murungi
Appellant
and
Bonface Ng’entu
Respondent
Ruling
1. The court, by an application dated 7. 6.2024, is asked to re-admit the appeal for hearing on merits and for the deputy registrar to be directed to call for the lower court file through the executive officer of the court appealed against. The applicant relies on the reasons on the face of the application and in the supporting affidavit of Gregory Mutuma Muthuri Advocate.
2. It is averred that during the mention on 18. 3.2024, the executive officer of the lower court failed to show cause or avail the lower court file. However, the court took the view that the appellant was indolent, yet the fault was not his. The applicant states that he has been willing to prosecute his appeal and to deny him that chance offends the right to fair hearing and natural justice. He urges the court to grant the reliefs sought; otherwise, there will be no prejudice occasioned to the respondent if the appeal is reinstated.
3. The respondent opposes the application through a replying affidavit of Gatari Ringera, advocate, sworn on 19. 6.2024 on the basis that no good reasons have been given to warrant the issuance of the prayers sought or prosecute the appeal despite previously extended extreme indulgence to the applicant. The respondent urges that litigation must come to an end.
4. A court has the discretion to reinstate an appeal that has been struck out on such terms as are just. Similarly, a court has the power to strike out an appeal for non-compliance. In Silas vs Minyori ELC Appeal E10 of 2021 (2024) KEELC 4594 (KLR) (6th June 2024) Ruling, the court cited John Nahashon Mwangi vs Kenya Finance Bank Ltd (in liquidation) (2015) eKLR, on the right to be heard as fundamental and that the sword of damacles should only draw out blood where it is essential and that on whether to reinstate or not there should be reasonable grounds and a consideration of the prejudice to the opposite party.
5. In this application the applicant blames the lower court for not availing the lower court file. Evidence of service of the notice to show cause to the executive officer dated 7. 3.2024 is lacking. The letter seeking the forwarding of the lower court file at the instance of the applicant. Since 2022, there is no evidence that the applicant has made efforts to seek for the lower court proceedings for him to aver that he has been ready to prosecute his appeal. Between 18. 3.2024 and 7. 6.2024, the delay to seek reinstatement is not explained.
6. Be that as it may the respondent has not expressed any prejudice or dissipation of the subject matter of the appeal if reinstatement is ordered. I grant the applicant the benefit of the doubt and reinstate the appeal for hearing. Throw away costs of Kshs.20,000/= to be paid to the respondent within 14 days from the date hereof. Mention on 25. 9.2024.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 18th DAY OF SEPTEMBER, 2024In presence ofC.A KananuMiss Onyango holding brief for Mutuma for the appellantHON. C K NZILIJUDGE