[2017] KEELC 2163 (KLR)
The court found that the appellants, through their advocate, failed to comply with a court directive issued on 10.11.2015 to serve the record of appeal on the respondents. No explanation or opposition was provided by the appellants or their advocate, who were absent at the hearing. The court applied Order 42, Rule...
Source-derived case information.
- Citation
- [2017] KEELC 2163 (KLR)
- Parties
- Appellant: Nyaga Muchiri; Appellant: Purity Mwathoka Muchiri (Legal Representative of Grace Nguru Muchiri, Deceased); Respondent: Thomas Njiru Kanyunga; Respondent: Micheru Kanyunga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 6 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Service of Record of Appeal, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyaga Muchiri
Appellant
Purity Mwathoka Muchiri (Legal Representative of Grace Nguru Muchiri, Deceased)
Appellant
Thomas Njiru Kanyunga
Respondent
Micheru Kanyunga
Respondent
Procedural Posture
Civil Appeal / Ruling on Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for failure to serve the record of appeal on the respondents as directed by the court.
- 2 Whether costs should be awarded to the 1st respondent.
Ratio Decidendi
The court found that the appellants, through their advocate, failed to comply with a court directive issued on 10.11.2015 to serve the record of appeal on the respondents. No explanation or opposition was provided by the appellants or their advocate, who were absent at the hearing. The court applied Order 42, Rule 35(2) of the Civil Procedure Rules, which empowers the court to dismiss an appeal for want of prosecution where necessary steps are not taken. Consequently, the appeal was dismissed and costs were awarded to the 1st respondent, who had actively defended the appeal.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed in terms of Order 42, Rule 35(2) of the Civil Procedure Rules.
- Costs are awarded to the 1st respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC [CA] CASE NO 06 OF 2017
FORMERLY MERU ELC [CA]CASE NO. 109 OF 2008
NYAGA MUCHIRI……………………..................................………………………1ST APPELLANT
PURITY MWATHOKA MUCHIRI – LEGAL REPRESENTATIVE OF GRACE NGURU MUCHIRI [DECEASED]………..…...............................................................………………....2ND APPELLANT
VERSUS
THOMAS NJIRU KANYUNGA………...........................……………...……….1ST RESPONDENT
MICHERU KANYUNGA………............................………………………...…...2ND RESPONDENT
RULING
1. This Appeal was listed for dismissal on 13. 7.2017. Only the 1st respondent and his advocate Mr. Nyamu Nyaga, were in court.
2. Mr. Nyamu brought to the court’s attention that Mr. B.G. Kariuki, the appellants’ advocate, had on 10. 11. 2015 been directed to serve the 1st and 2nd respondents with the record of Appeal. He had not done so. Mr Nyamu asked the court to dismiss the Appeal and award costs to the 1st respondent as he had all along defenced the Appeal.
3. This Appeal is dismissed in terms of Order 42, Rule 35(2) CPR
4. Costs are awarded to the 1st Respondent.
5. It is so ordered.
Delivered in open court at Chuka this 13th day of July, 2017 in the presence of:
CA: Ndegwa
Nyamu Nyag for the 1st Respondent
P.M. NJOROGE
JUDGE