https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3161

Malungu v Munyasya (Environment and Land Appeal 179 of 2011) [2026] KEELC 3161 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEELC 3161 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Appeal 179 of 2011 AY Koross, J May 19, 2026 Between Mutua Malungu Appellant and Kilungu Munyasya Respondent Ruling 1.Before this court for determination is appellant’s unopposed notice of motion dated 9 July 2025, brought under several provisions of the law, and he seeks the following orders from this court: -a.Spent.b.Spent.c.An order of stay of execution of the ruling of the Eastern Province Land Disputes Appeals Committee at Embu of 19 July 2011, vide appeal no. 10 of 2010, and adopted as a judgment of the court on 12 October 2011 via Mutomo RMLC no. 25 of 2009, be issued pending the hearing and determination of the main appeal.d.The dismissal orders made on 16 November 2018 be set aside, and the appeal be reinstated.e.The matter be transferred to the Environment and Land Court, Kitui, for hearing and determination.f.The appellant be granted leave to amend the memorandum of appeal dated 15 November 2011 in terms of the annexed draft amended memorandum of appeal.g.The appellant be granted leave to file the record of appeal in terms of the annexed draft record of appeal.h.The annexed amended memorandum of appeal and draft record of appeal be deemed as duly filed and served upon the respondent.i.Costs of the application be provided for. 2.The motion is anchored on the grounds listed on its face and in the appellant’s supporting affidavit, sworn on the instant date. In summary, he states that the appeal was dismissed for want of prosecution on 16 November 2018, which was occasioned by his long illness between 2011 and 2025 and a breakdown in communication between him and his counsel. Further, he was apprehensive that the respondent would execute the decree. 3.When this matter came before this court on 9 October 2025, the respondent’s counsel, Miss. Kiama was granted 21 days to file his response, but unfortunately, counsel did not file any. Thereafter, on the rescheduled hearing date of 5 February 2026, the appellant’s counsel, Mr. Mukula, orally submitted that, since the motion is unopposed, it should be allowed as prayed, and hence the matter was reserved for ruling today. Accordingly, after thoroughly examining the motion, including its grounds and affidavit, as well as the provisions of law, elements which shall be considered in the analysis and determination of this matter, the distilled issue for determination is whether this court should reinstate the appeal. 4.Nonetheless, prior to addressing the substantive issue, it is necessary to resolve certain preliminary matters. There are no ongoing proceedings or a pending appeal that can be stayed, transferred or amended, and the orders sought by the appellant in that regard are therefore inappropriate. We will now proceed. 5.Respecting the substantive issue, the relevant law on dismissal of an appeal is found in our Order 42 Rule 35 (1) and (2) of the Civil Procedure Rules, which provides that:“(1)Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.(2)If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.” 6.In the instant case, the appeal was dismissed under Order 42 Rule 35 (2) of the Civil Procedure Rules after notices were issued to the appellant’s then law firm on record Ms. Paul Kisongoa & Co. Advocates, resting with the one dated 4 October 2018. The appellant has confirmed that this law firm was indeed served with such notice. Upon failure to heed the notice, the appeal was dismissed for want of prosecution. 7.Moreover, this court has inherent power to issue orders as appropriate to prevent abuse of the court process and to make such orders as may be necessary to serve the ends of justice or to prevent abuse of the court’s process as envisaged by Section 3A of the Civil Procedure Act. Furthermore, Section 3 of the Environment and Land Court Act outlines the overriding objective of this court as follows: -(1)The principal objective of this Act is to enable the Court to facilitate the just, expeditious, proportionate and accessible resolution of disputes governed by this Act.(2)The Court shall, in the discharge of its functions under this Act give effect to the principal objective in subsection (1).(3)The parties and their duly authorised representatives, as the case may be, shall assist the Court to further the overriding objective and participate in the proceedings of the Court. 8.Most importantly, Practice Direction No. 43 of the Environment and Land Court (ELC), as published in Gazette Notice No. 5178, grants this court broad authority to impose sanctions, including dismissing appeals. Several court decisions have addressed the issue of dismissing an appeal for want of prosecution, including James & another v Chesimet & another [2025] KEHC 86 (KLR) and Mwachidete v Mwangumaye [2023] KEHC 2286 (KLR). 9.Regarding the variation or setting aside of court orders, this court exercises its discretionary powers to entertain and determine such applications pursuant to the provisions of Order 12 Rule 7 of the Civil Procedure Rules, which stipulates that where judgment has been entered or the suit has been dismissed under this order, the court, upon application, may set aside or vary the judgment or order upon such terms as are just. 10.The jurisprudence that guides this court in the exercise of judicious discretion in dealing with such motions is settled, and the decision of Shah v Mbogo and Another [1967] EA 116 Limited [2020] eKLR, which was cited with approval in the case of John Waweru Njenga & 5 others v Motor Botique, detailed the guiding principles as follows: -“This discretion (to set aside ex parte Court decisions) is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” 11.These criterion is also restated in the long-cited decision of Ivita v Kyumbu [1975] KEHC 4 (KLR), whereby in this case, the court held that the tests to be applied are whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. In this decision, the court stated thus: -“So the test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay and that justice can still be done to the parties notwithstanding the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time. Where the defendant satisfies the court that there has been prolonged delay and the plaintiff does not give sufficient reason for the delay the court will presume that the delay is not only prolonged but it is also inexcusable and in such case the suit may be dismissed.” 12.The dismissal of suits and/or appeals for want of prosecution mainly depends on how long it takes to pursue the case. The core principle is that justice should be delivered without unnecessary delays, encapsulated in the saying that “justice delayed is justice denied.” The reason for dismissing suits for lack of prosecution is to ensure that litigation moves forward and concludes promptly. It is unjust to file a case and then let it remain idle, hanging over the other party like the sword of Damocles. Dismissals serve to clear court backlogs caused by parties unwilling to pursue their cases. Pending cases that remain inactive create congestion, leading to public mistrust and diminishing confidence in the judiciary. Therefore, dismissals help reduce the growing caseloads and backlog, preventing stale suits from clogging the judicial system. 13.In support of the reasons for not prosecuting the appeal, the appellant has presented several medical records which show he received outpatient treatment on 14 July 2011 at Ikutha Health Clinic. The subsequent hospital visit was at Coast General Teaching and Referral Hospital on 27 September 2017, but the contents are illegible. He was also treated as an outpatient on 28 November 2019 and 19 December 2019, and was given prescription glasses on 18 March 2024. He also stated that there was a breakdown in communication with his erstwhile counsel. It also emerged that the proprietor of this law firm died on 31 October 2023, but this information is irrelevant to the dismissal of the appeal, which had long been dismissed prior to such demise. 14.Guided by the law and settled principles, this court finds that the appellant has failed to meet the legal threshold for reasons that the medical records show nothing prevented him from prosecuting the appeal from the time he filed it until 27 September 2017, when he was admitted to hospital. Notably, the outpatient treatment on 14 July 2011 occurred before this appeal was filed on 15 November 2011. Moreover, the onus was on him to obtain a legible copy of his treatment records for 27 September 2017, which he failed to do. 15.It is clear from these medical records that they could not form the basis for the failure to prosecute his appeal for seven years. The appeal belonged to the appellant. He was solely to blame for failing to issue instructions to his erstwhile counsel, which he has described as a breakdown in communication. It is evident that he was indolent and sat on his laurels after filing the appeal, to his own detriment. Thus, this court is not satisfied with the reasons advanced by the appellant, and it appears that this application is an afterthought and intended to forestall execution of a decree. 16.Furthermore, this matter was filed in court in the year 2011, which was 15 years ago, a lengthy period, and the reinstatement of the appeal would cause significant difficulty, injustice, and prejudice to the respondent. 17.In light of the above reasons, this court finds the application dated 9 July 2025 lacking in merit. The court dismisses it. Since it was unopposed, the appellant shall bear his costs. This file is hereby effectively marked as closed.Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 19TH DAY OF MAY, 2026.HON. A. Y. KOROSSJUDGE19.05.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Mr. Kyule for Mr. Mutula for applicant.Mr. Mwangi for Mr. Mwalimu for respondent.