[2025] KEELC 1012 (KLR)
The court found that although the appeal was dismissed for want of prosecution, the record showed that the matter was listed for mention and not for hearing on the date of dismissal. The appellants had faced procedural challenges, including transfer of the suit and changes in legal representation, which affected...
Source-derived case information.
- Citation
- [2025] KEELC 1012 (KLR)
- Parties
- Appellant: Timothy Nkonge; Appellant: Moses Kaimenyi; Appellant: Lawrence Koome; Appellant: Rose Ngugune; Respondent: John Mugambi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 13 of 2023
- Procedural Posture
- Environment and Land Appeal / Ruling on Application for Reinstatement of Appeal
- Outcome
- Application for reinstatement of appeal allowed.
- Judges
- LN Mbugua
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Appeal, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Nkonge
Appellant
Moses Kaimenyi
Appellant
Lawrence Koome
Appellant
Rose Ngugune
Appellant
John Mugambi
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application for Reinstatement of Appeal
Legal Issues
- 1 Whether the appeal should be reinstated after dismissal for want of prosecution.
- 2 Whether the appellants were accorded sufficient opportunity to prosecute the appeal before dismissal.
- 3 Whether the dictates of justice require the reinstatement of the appeal in the circumstances.
Ratio Decidendi
The court found that although the appeal was dismissed for want of prosecution, the record showed that the matter was listed for mention and not for hearing on the date of dismissal. The appellants had faced procedural challenges, including transfer of the suit and changes in legal representation, which affected their ability to prosecute the appeal. The court held that the dictates of justice required the reinstatement of the appeal, exercising its discretion to allow the application and restore the matter for substantive determination. Each party was ordered to bear their own costs of the application.
Court Disposition
Application for reinstatement of appeal allowed.
Orders
- The appeal is reinstated.
- Each party shall bear their own costs of the application.
Full Case Text
Judgment text and source record
29 paragraphs
Nkonge & 3 others v Mugambi (Environment and Land Appeal 13 of 2023) [2025] KEELC 1012 (KLR) (5 March 2025) (Ruling)
Neutral citation: [2025] KEELC 1012 (KLR)
Republic of Kenya
In the Environment and Land Court at Nanyuki
Environment and Land Appeal 13 of 2023
LN Mbugua, J
March 5, 2025
Between
Timothy Nkonge
1st Appellant
Moses Kaimenyi
2nd Appellant
Lawrence Koome
3rd Appellant
Rose Ngugune
4th Appellant
and
John Mugambi
Respondent
Ruling
1. Before me is a notice of motion application dated 27. 1.2025 in which the appellants are seeking orders for the reinstatement of the appeal which was dismissed on 16. 9.2024. They argue that the suit was dismissed for want of prosecution based on the application dated 31. 3.2023 filed by the respondent. They aver that they intend to prosecute the matter with diligence.
2. The respondent opposed the application vide a replying affidavit dated 14. 2.2025 where he argues that he filed the application dated 31. 3.2023 for the dismissal of the appeal as the matter had delayed for several years. The respondent gave a chronology of events leading to the dismissal of the appeal including the fact that the appellants were given sufficient time to get legal representation. That on 19. 6.2024, the appellants’ advocate was in court and was given more time to regularise his appointment. He was also served with the application in open court and the matter was fixed for hearing of the application on 29. 7.2024. Come the said date and the advocate for the appellant was yet to regularise his appointment, hence the matter was given a mention date for directions on 16. 9.2024. Again they had not complied, hence the application to dismiss the appeal was allowed.
3. A perusal of the record reveals that the respondents had filed an application dated 31. 3.2024 for the dismissal of the appeal which was allowed on 16. 9.2024. The question falling for determination is whether this appeal should be reinstated.
4. In Mwangi S. Kimenyi vs Attorney General and Another [2014] eKLR the court stated that;“The decision whether a suit should be re-instated for trial is a matter of justice and it depends on the facts of the case…..”.
5. While in Gold Lida Limited vs NIC Bank Ltd & 2 other (2018) eKLR it was held that:“The overriding objective of our constitutional and statutory framework on civil procedure is to achieve substantive justice to the litigants….”.
6. This court being a court of law as well as a court of record finds that from the time the application dated 31. 3.2023 was filed, numerous fundamental factors have affected the prosecution of the matter including; the transfer of the suit from Nyeri ELC to Nanyuki ELC, the advocate for the appellants had also ceased acting through their application dated 17. 10. 2023 which was allowed on 14. 12. 2023, that directions on the prosecution of the main suit were active (see proceedings of 15. 5.2024) and so were directions on the prosecution of the application dated 31. 3.2024 (see proceedings of 19. 6.2024 when the said application was given a hearing date of 29. 7.2024).
7. Of great importance are the proceedings of 29. 7.2024 where the court gave the following directions; “Mention on 16. 9.2024 for directions”. Since the matter was listed for mention and not for the hearing of the application dated 31. 3.2023, I find that the dictates of justice demand that the suit be reinstated. To this end, I make reference to the case of Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v M.D. Popat and others & another [2016] KEHC 6855 (KLR) , where the court stated that;“Courts are assigned the unfettered discretion where it is so prescribed, in order to salvage justice from defeat, to make such interlocutory orders as appear to the court to be just and convenient”.
8. Thus the application dated 27. 1.2025 is allowed and each party is to bear their own costs of the application.
DATED, SIGNED AND DELIVERED AT NANYUKI THIS 5TH DAY OF MARCH 2025 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Kimaru Kibuchi for RespondentOnaya Ombere for Applicant absentCourt Assistant: Nancy Mwangi