[2022] KEELC 13659 (KLR)
The court found that there was insufficient evidence or particulars regarding the death of the appellant to dismiss the appeal solely on the ground of abatement. However, the record showed that since the notification of the appellant's alleged death, no steps had been taken to obtain a grant or substitute the...
Source-derived case information.
- Citation
- [2022] KEELC 13659 (KLR)
- Parties
- Appellant: Charity Njoki Njoroge; Respondent: Geoffrey Thiongo & Reuben Kibue Thiongo; Respondent: Revival & Restoration International Church
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E038 of 2020
- Procedural Posture
- Environment and Land Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Appeal dismissed for want of prosecution. Each party to bear their own costs.
- Judges
- LN Mbugua
- Legal Topics
- Dismissal for Want of Prosecution, Abatement of Appeal, Substitution of Deceased Party, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charity Njoki Njoroge
Appellant
Geoffrey Thiongo & Reuben Kibue Thiongo
Respondent
Revival & Restoration International Church
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 42 rule 35 of the Civil Procedure Rules.
- 2 Whether the alleged death of the appellant and lack of substitution abates the appeal.
Ratio Decidendi
The court found that there was insufficient evidence or particulars regarding the death of the appellant to dismiss the appeal solely on the ground of abatement. However, the record showed that since the notification of the appellant's alleged death, no steps had been taken to obtain a grant or substitute the appellant, and the matter had not progressed despite several mentions before the Deputy Registrar. The court concluded that the appeal had stagnated for an unreasonable period without prosecution. Accordingly, the appeal was dismissed for want of prosecution under Order 42 rule 35 of the Civil Procedure Rules. Given the circumstances of the appellant's alleged death, the court...
Court Disposition
Appeal dismissed for want of prosecution. Each party to bear their own costs.
Orders
- The appeal is dismissed for want of prosecution under Order 42 rule 35 of the Civil Procedure Rules.
- Each party shall bear their own costs of the suit.
Full Case Text
Judgment text and source record
22 paragraphs
Njoroge v Thiongo & another (Environment and Land Appeal E038 of 2020) [2022] KEELC 13659 (KLR) (13 October 2022) (Ruling)
Neutral citation: [2022] KEELC 13659 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment and Land Appeal E038 of 2020
LN Mbugua, J
October 13, 2022
Between
Charity Njoki Njoroge
Appellant
and
Geoffrey Thiongo & Reuben Kibue Thiongo
1st Respondent
Revival & Restoration International Church
2nd Respondent
(An appeal against the entire judgment and decree of the Chief Magistrate Court at Milimani Commercial Courts Hon. L.L. Gicheha Chief Magistrate delivered on 28th August 2020 in Civil Case 8958 of 2018)
Ruling
1. Before me is an application dated 16. 5.2022 in which the 1st Respondents are seeking orders for the dismissal of the appeal for want of prosecution. It is averred that this appeal was filed close to two years ago on 25. 9.2020 and no steps have been taken to prosecute the same. That counsel for the appellant has indicated that the appellant has since passed on yet no steps have been made to substitute her, and that the appeal has abated. On 25. 7.2022, Counsel for the appellant had informed the court that he no longer had instructions in the matter.
2. I find that there are no concise particulars regarding the death of the appellant. Her advocate had simply informed the court that she died sometime in August 2021. That being the case, I decline to dismiss the suit on the basis of abatement.
3. However, I note that on 29. 9.2021, the date the court was informed that the appellant had passed on, the court gave directions for the matter to be mentioned before the Deputy Registrar on 1. 12. 2021 to confirm the status of a grant. The matter was mentioned severally before the Deputy Registrar on 1. 12. 2021, 28. 2.2022 and 12. 5.2022. In all those instances, there was no indication that the process of getting a grant had commenced.
4. In the circumstances, this suit is dismissed for want of prosecution under Order 42 rule 35 of the Civil Procedure Rules. Noting that the appellant is allegedly deceased, I direct each party to bear their own costs, of the suit.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF OCTOBER, 2022 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Wesonga holding brief for Kiprop for 3rd RespondentMuturi Kamande for Applicant (1st Respondent)Mathenge for AppellantCourt assistant: Eddel/Joan