[2019] KEELC 3419 (KLR)
The court found that although the appellant filed the record of appeal, he failed to serve it on the respondent as required by previous court orders. However, since the appeal had not yet been admitted, the court exercised its discretion under Section 79B of the Civil Procedure Act to allow the appellant a final...
Source-derived case information.
- Citation
- [2019] KEELC 3419 (KLR)
- Parties
- Appellant: Paul Kanjiita Kiome; Respondent: Gachiuru Mwinji Mugambi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 02 of 2019
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Compliance With Procedural Orders Prior to Admission of Appeal
- Outcome
- Appellant directed to serve the notice of appeal within 10 days; failure to comply may result in appropriate measures by the court.
- Judges
- FM Njoroge
- Legal Topics
- Service of Process, Admission of Appeal, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kanjiita Kiome
Appellant
Gachiuru Mwinji Mugambi
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Compliance With Procedural Orders Prior to Admission of Appeal
Legal Issues
- 1 Whether the appellant complied with court orders regarding service of the record of appeal.
- 2 Whether failure to serve the record of appeal warrants dismissal of the intended appeal.
- 3 Whether the court should admit the appeal or take other procedural steps.
Ratio Decidendi
The court found that although the appellant filed the record of appeal, he failed to serve it on the respondent as required by previous court orders. However, since the appeal had not yet been admitted, the court exercised its discretion under Section 79B of the Civil Procedure Act to allow the appellant a final opportunity to serve the notice of appeal within 10 days, rather than dismissing the appeal outright. The court emphasized the importance of compliance with procedural orders but prioritized the interests of justice in granting this extension, warning that failure to comply would result in appropriate measures being taken, including possible dismissal.
Court Disposition
Appellant directed to serve the notice of appeal within 10 days; failure to comply may result in appropriate measures by the court.
Orders
- The intended appellant is directed to serve the notice of appeal upon the intended respondent within 10 days of the ruling.
- Failure to serve within the stipulated period may result in the court taking appropriate measures.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CIVIL APPEAL CASE NO. 02 OF 2019
PAUL KANJIITA KIOME............................................APPELLANT
VERSUS
GACHIURU MWINJI MUGAMBI.........................RESPONDENT
RULING
1. On 16th January, 2019, this court issued the following orders:
a) The Memorandum of Appeal to be served upon the intended respondent within 21 days of today.
b) The intended appellant to file a record of Appeal within 30 days of today.
c) All parties to come to court for directions on 3rd April, 2018.
2. On 3rd April, 2019, Miss Kithaka the intended appellant’s advocate, asked the court to give the parties another date by which the intended appellant would have filed and exchanged the apposite record of appeal. The court issued the following orders:
a) Appellant to file and exchange the record of appeal within 14 days of today.
b) Directions on 8. 5.2019.
3. On 8th May, 2019, Mr. Manasses Kariuki, the respondent’s advocate told the court that the intended appellant had not served the respondent with the record of appeal contrary to the court’s orders issued on 3rd April, 2018. He decried that the intended appellant and his advocate were not in court to explain this disobedience of a court order. He asked the court to dismiss the intended appeal. I opine that this is a good ground to dismiss the intended appeal but I will explain the decision I have taken in this matter in paragraph 5 hereof.
4. I note that the intended appellant filed his record of Appeal on 3rd May, 2019 but has not served the respondent.
5. As the intended appeal has not been admitted, I am entitled to peruse the lower court’s file and the decision made by the lower court in accordance with Section 79B of the Civil Procedure Act. I would then certify that there is sufficient ground or no sufficient ground for interfering with the decree, part of the decree or other orders appealed against. However, in the interest of justice, I will not do so. Therefore, the intended appellant is directed to serve the notice of appeal upon the intended respondent within 10 days of today, failing which the court may take appropriate measures.
6. It is so ordered.
Delivered in open court at Chuka this 15th day of May, 2019 in the presence of:
CA: Ndegwa
Kiogora Arithi for the Respondent
P. M. NJOROGE
JUDGE