[2018] KEELC 3845 (KLR)
The court found that the appellant failed to set down the appeal for hearing within one year after service of the memorandum of appeal, as required by Order 45 Rule 35(2) of the Civil Procedure Rules. The appeal remained unprosecuted for nearly 10 years, demonstrating clear inaction by the appellant. In these...
Source-derived case information.
- Citation
- [2018] KEELC 3845 (KLR)
- Parties
- Appellant: Roland Mbuba Mukingo; Respondent: Lucy Karimi Mucioka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 2 of 2018
- 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, Appeals Process, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Roland Mbuba Mukingo
Appellant
Lucy Karimi Mucioka
Respondent
Procedural Posture
Civil Appeal / Ruling on Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction by the appellant.
- 2 Whether the respondent is entitled to costs upon dismissal of the appeal.
Ratio Decidendi
The court found that the appellant failed to set down the appeal for hearing within one year after service of the memorandum of appeal, as required by Order 45 Rule 35(2) of the Civil Procedure Rules. The appeal remained unprosecuted for nearly 10 years, demonstrating clear inaction by the appellant. In these circumstances, the court exercised its discretion to dismiss the appeal for want of prosecution and awarded costs to the respondent.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- Costs are awarded to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CIVIL APPEAL CASE NO. 02 OF 2018
FORMERLY MERU HIGH COURT CIVIL APPEAL NO. 70 OF 2009
ROLAND MBUBA MUKINGO.........................................APPELLANT
VERSUS
LUCY KARIMI MUCIOKA...........................................RESPONDENT
RULING
1. Notice was issued to the parties that this appeal was listed for dismissal before the Chuka ELC Judge on 11th April, 2018.
2. The appellant did not come to court. M/S Kithaka urged the court to dismiss the suit.
3. I find that contrary to the requirement of order 45 rule 35(2) of the Civil Procedure Rules, the appellant did not set down the appeal for hearing within one year after service of the apposite memorandum. Indeed the appeal has remained unprosecuted for close to 10 years.
4. In the circumstances, this appeal is dismissed.
5. Costs are awarded to the respondent.
6. It is so ordered.
Delivered in open Court at Chuka this 11th day of April, 2018
in the presence of:
CA: Ndegwa
M/S Kithaka for the Respondent
P. M. NJOROGE
JUDGE