https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5263

Mwambweni v Nzaro (Environment and Land Appeal E004 of 2024) [2026] KEELC 5263 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELC 5263 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Environment and Land Appeal E004 of 2024 LL Naikuni, J June 29, 2026 Between Salim Mashaka Mwambweni Appellant and Said Edward Nzaro Respondent Ruling I. Introduction 1.Before this Honourable Court for its determination is the Notice of Motion application by dated 5th December, 2025 by SAID EDWARD NZARO, the Respondent/Applicant herein. The application was brought pursuant to the provisions of Order 17 Rule 2 (1), Order 42 Rules 20, 35 (2) of the Civil Procedure Rules, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and all other enabling provisions of the Law. 2.Despite of service having been effected, and there is proof of it - the application is unopposed. Nonetheless, the Honourable Court proceeds to deliver the Ruling on its own merit whatsoever. II. The case by the Respondent/Applicant 3.The Respondent/Applicant sought for the following orders:-a.Spent.b.That the Appellants Appeal herein be dismissed for want of prosecution.c.That the Appellant be ordered to pay the costs of this Application and Appeal. 4.The application was premised on grounds, testimonial facts and the averments made by a 16 Paragraphed Supporting Affidavit sworn by Said Edward Nzaro. The deponent averred as follows that:-a.He was the Land Lord and Respondent/Applicant in the matter.b.The Judgement being Appealed against was delivered on 16th April, 2024. Being aggrieved, the Appellant filed his Memorandum of Appeal in May, 2024.c.In the same year of 2024, July the Appellant applied for stay of execution of the Judgement which was granted.d.The Appellant filed a Record of Appeal dated 16th September, 2024 and thereafter there were several miss steps and the Appeal was never prosecuted as required under the Law.e.The Respondent’s Advocate wrote to the Appellants Advocates pointing out several omissions and mistakes in the Record of Appeal dated 16th September 2024 but despite the letter the Appellant did not effect any corrections to the Record. Annexed and marked as “SEN – 1” was the letter dated 4th February, 2025.f.The Appellant never took any action on the faulty Record since February, 2025 when he was notified till August 2025 when he filed another Record of Appeal.g.Since the new record of Appeal was filed the Appellant had never appeared in Court despite being notified and or being given clear and strict directions and timelines by the court.h.Neither the Appellant nor his Advocates appeared in Court on 27th October 2025 as directed by the Court and the Court again gave another chance for Appellant to Appear in court on 19th November, 2025 but they never appeared. Annexed and marked as “SEN – 2” was a copy of Mention Notice dated 8th November. 2025.i.The Appellant and or his Advocate had never moved the Court since then nor attempted to fix another date for Hearing of the Appeal.j.It appeared the Appellant had lost Interest in the Appeal and was not willing to prosecute it same to the detriment of the Applicant/Respondent.k.Due to the stay of execution orders granted last year the property Subject of the Appeal had deteriorated as it could not be repaired consequently almost all tenants had vacated the premises. There was absolutely no Income being generated from the premises.l.He was advanced in age and ailing with high Medical Bills and it was sad that he could not fully utilise his investments to get income to treat himself and or for upkeep.m.The Applicant had no other source of Income apart from the subject property and the longer this Appeal and Stay orders remained in force then he was condemned to poverty and struggle and hence urged this Court to Intervene and give justice.n.From the record it was clear the Appellant had prevented him from getting Income from his property for several years which situation had almost led the Respondent to depression and resultant ailments and the longer the Appeal stayed the longer he continued to suffer without Income.o.The Appeal itself was frivolous and intended to frustrate the deponent and he thus urge the Court to dismiss the same. III. Submissions 5.The application was first placed before court under certificate of urgency on 17th December, 2025. Directions were issued for service to be effected upon Appellant and proof of service in the form of affidavit of service pursuant to Order 5 Rule 15 of the Rules. The Appellant was granted 14 days to file a response to the application for dismissal and an interpartes hearing set for 19th March, 2026. 6.On 19th March, 2026, a ruling date was set for 6th May, 2026. By the time of penning down this Ruling, the Honourable Court had not accessed from both the Judiciary CTS Portal and/or ELC Registry any responses nor submissions filed by the Appellant nor the Respondents. Thus, on 29th June, 2026 it proceeded to deliver this Ruling on its own merit accordingly. IV. Analysis and Determination 7.I have carefully read and considered the pleadings herein by the Applicant , the relevant provisions of the Constitution of Kenya, 2010 and statutes. 8.In order to arrive at an informed, just, equitable and reasonable decision, the Honorable Court has framed the following three (3) issues for its determination. These are:a.Whether through the Notice of Motion application dated 5th December, 2025 the Respondent/Applicant has made out a case to warrant grant of orders sought for dismissal of the appeal for want of prosecution.b.Whether the parties were entitled to the reliefs sought.c.Who bears the costs of the application? Issue No. a). Whether through the Notice of Motion application dated 5th December, 2025 the Respondent has made out a case to warrant grant of orders sought for dismissal of the appeal for want of prosecution. 9.Before embarking of the analysis of the framed issues herein with reference to the disposal of the application, the Honourable Court wishes to extrapolate on a brief background of the matter. While so doing, the Honourable Court is informed on the legal rationale that its duty in an appeal from a Lower Court or Quasi Judicial body to reconsider the evidence, evaluate it itself and draw its own conclusions. To justify on this legal preposition, the Honourable Court relies the following two High Court decisions over the said subject matter. These are the case of:- “Selle & Another – Versus - Associated Motor Boat Co. Ltd & Others [1968] EA 123”, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." 10.Similarly, the said legal ratio was held in the case of:- “Kenya Ports Authority - Versus - Kuston (Kenya) Limited (2009) 2EA 212” wherein the Court of Appeal held inter alia that: -“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence” 11.Therefore, from the record, the Respondent/Applicant herein was the legal and registered owner to all that property known as and trading in the names and style of “Calypso Market” situatedin Ukunda Kona ya Musa within the County of Kwale (Hereinafter referred to as “The Suit Premises”). Hence, he was its Land Lord. Sometimes in the year 2018, the 1st Appellant/Respondent and the Respondent/Applicant met he expressed interest to let the suit premises. By that time, the suit premises was only comprised of a high raised podium of concrete foundation but no walls. It was not in tenable condition. Resultantly, on 20th May, 2018 they duly executed a Land – Lord – Tenancy Agreement under the following terms and conditions stipulated thereof that:-a.The 1st Appellant/Respondent would undertake renovation of the suit premises and sub – let it.b.There be a monthly rent of a sum of Kenya Shillings Seven thousand (Kshs. 7, 000.00/=) and an initial deposit of equal amount.c.The rent payable after renovation be apportioned as to wit whereby a sum of Kenya Shillings Three Thousand Five Hundred (Kshs. 3, 500/=) to be pad to the Respondent/Applicant while the balance to be retained to cover the renovation expenses incurred by the 1st Appellant/Respondent.d.One unit to be given to the Land – Lord for his own use. 12.Hence, the renovation commenced in earnest costing a total sum of Kenya Shillings Nine Hundred Thousand (Kshs. 900, 000/=) and was finalised leading to development of several units which the 1st Appellant/Respondent sub – let to the 2nd, 3rd, 4th and 5th Appellant/Respondents herein. As agreed, the Land – Lord retained one unit. The Land – Lord – Tenancy relationship continued until 15th December, 2019 when the Land Lord refused to receive rent from the Tenants. He demanded that the tenants vacate the suit premises. Indeed, the Land – Lord issued them with a notice to terminate tenancy of all the tenants under the provision of Section 4 ( 2 ) of “the Land Lord and Tenants (Shops, Hotels and Catering Establishment) Act, Cap. 301 (Hereinafter referred to as “The Act”). The grounds for the termination were:-i.Failure to pay rent as agreed in tenancy agreement for a period of over one ( 1 ) year.ii.Breach of Tenancy Agreement by illegal expansions and sub – letting the suit premises beyond the agreement.iii.The Land – Lord wanted to use/occupy the premises for his own purposes. 13.Apparently, nothing much seemed to have happened in between though they claimed that the land Lord continued intimidating and harassing them. According to them, they saw no peace.a.Eventually, on 29th July, 2023 the Appellant/Respondent instituted a Reference and filed a Notice of Motion application dated 31st July, 2023 before the Business Premises & rent Tribunal at Mombasa being BPRT Tribunal case No. E182 of 2023. They sought for injunctive orders restraining the Land – Lord from evicting them from the suit premises and also protection by the police. Vide a Replying Affidavit dated 4th September, 2023, the Land – Lord replied controverting all the issues alleged thereof. Subsequently, the matter was heard and finally determined vide a Judgement delivered on 16th April, 2024 by Honourable Ndegwa Wahome and Honourable J. Murigi members of the BPRT respectively under the following terms that:-a.The notice of termination of tenancy dated 24th May, 2023 isb.Upheld in respect to the 1st Applicant namely Salim Mashaka Mwabweni but is dismissed as against the 2nd to 5th Applicants.c.The 1st Applicant shall all pay the rents in arrears as admitted at a sum f Kenya Shillings One Hundred and Fifty Nine Thousand (Kshs. 159, 000.00/=) and all other accrued Mesne profits at the same rates as the rent that was payable on the premises.d.Each party shall bear own costs of this suit.(See Pages 102 to 110 of the Record of Appeal). 14.Being aggrieved by the afore stated decision, the Appellants/Respondents preferred this Appeal before this Honourable Court. Fundamentally, the Appeal herein entails the Memorandum of Appeal dated 17th May, 2024 and a 110 Pages Record of Appeal dated 16th September, 2024 against the Respondent Said Edward Nzaro. The Appeal was based on the following grounds that:-a.The Learned Members erred in fact and law by holding that the notice of termination of tenancy dated 24th May, 2023 be upheld in respect of the 1st Applicant namely Salim Mashaka Mwabweni but was dismissed against the 2nd to 5th Applicants.b.The Learned Members erred in fact and law by holding that the 1st Applicant shall all pay the rents in arrears as admitted at a sum f Kenya Shillings One Hundred and Fifty Nine Thousand (Kshs. 159, 000.00/=) and all other accrued Mesne profits at the same rates as the rent that was payable on the premises.c.The Learned Members erred in fact and law by ignoring and misunderstanding the facts and evidence adduced before him thereby arriving at a wrong conclusion. 15.The Appellants prayed that the Appeal be allowed and Judgement be entered against the Respondent as follows:-i.The entire Judgement and Decree of the BPRT be set aside, discharged and/or varied.ii.Costs. 16.Through an Notice of Motion Application dated 26th June, 2024, the Appellants/Respondent sought for orders of stay of execution of the BPRT Judgement and which was granted on 29th July, 2024. Subsequently, on diverse dates of 17th September, 2024, 23rd September, 2024, 12th November, 2021, 27th July, 2025, 17th February, 2025, 18th February, 2025, 5th March, 2025, 4th June, 2025, 16th July, 2025, 27th October, 2025, 19th November, 2025, 29th January, 2026 and 19th March, 2026 respectively whereby the matter was mentioned parties seeking divergent orders of the Court leave to file Supplementary Records of Appeal or to withdraw the filed Record of Appeal and file a fresh one but which never came to fruition. From the record, it will be noted that the Respondent/Applicant and the Honourable Court had always been very keen on Admitting the final Appeal and providing directions its disposal based on the provision of Section 79B of the Civil Procedure Act, Cap. 21 and Order 42 Rules 11, 13 & 16 of the Civil Procedure Rules, 2010. In all these, it’s lethargic attitude, unwillingness and keenness by the the Appellants/Respondents to prosecute their appeal that necessitated the filing of the instant application by the Respondent/Applicant. Indeed, it will bot be escaped that the Court had over - stretched its magnanimity and patience towards the Appellants/Respondents in this matter. That is adequate on facts. 17.Now turning to the issues of analysis under this sub heading. The Notice of Motion dated 5th December, 2025 invokes both the provisions of Order 17 Rule 2 and Order 42 Rules 20 (1) & (2) and 35 ( 1 ) & ( 2 ) of the Civil Procedure Rules, 2010 for dismissal of an appeal for want of prosecution alongside the provisions of Section 3A of the Civil Procedure Act, Cap. 21 the latter which reserves the inherent power of the court “to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court”. 18.The provision of Order 17 Rule 2 of the Civil Procedure Rules, 2010 provides that: -“(1)In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.(2)If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.(3)Any party to the suit may apply for its dismissal as provided in sub-rule 1.(4)The court may dismiss the suit for non-compliance with any direction given under this Order.(5)A suit stands dismissed after two years where no step has been undertaken.(6)A party may apply to court after dismissal of a suit under this Order.” 19.In the present case the applicable law on the process of appeals is regulated by the Civil Procedure Act, Cap. 21 and Civil Procedure Rules, 2010. The relevant provision on dismissal of an appeal for want of prosecution is provided for under the provision of Order 42 Rule 35 (1) & ( 2 ) which states:( 1 )Unless within three months, after granting of directions under Rule 13, the appeal shall have been set down for hearing by the Appellant. The Respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.(2)If within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the Registrar shall on notice to the parties list the appeal before a Judge in chambers for dismissal.” 20.In the case of:- “Wilson Kiarie Njoroge – Versus - Family Bank Limited & Another 2015] eKLR the court stated as follows:-“….while I note that a Plaintiff has a primary duty to take steps to progress its case, the law prohibits impulsive inclination and requires that before making such an order as the one sought herein i.e dismissal of a suit, the court must first satisfy itself that there was inordinate delay in prosecuting the matter, that the said delay was deliberate and inexcusable and is an abuse of the court process, that the said delay shall occasion prejudice to the other party….” 21.Similarly, in the case of:- “Dock Workers Union of Kenya – Versus - Kenya Ports Authority; Portside Freight Terminals Limited & another (Interested Parties) (Constitutional Petition E006 of 2020) [2022] KEHC 12951 KLR”, Mativo J [as he then was] pronounced himself as follows:-“…. In light of these principles, it is my view that the rules permit a court to dismiss, in appropriate circumstances, an action for want of prosecution. It will constitute a justifiable limitation of a plaintiff’s constitutional right of access to the courts. An intention not to prosecute a suit may reasonably be inferred particularly where there is an inordinate or unreasonable delay in prosecuting the case or application. In order to have the advantage of the courts exercise of discretion, the Plaintiff must show that he was prevented by sufficient cause from prosecuting the case. Sufficient cause means something beyond the control of the party. The words “sufficient cause” should be liberally construed. The Applicant must satisfy the court that he was not negligent and inactive. It must be considered that when there is a delay in prosecuting a case or the time filing the application or an appeal lapses a valuable right accrues to the successful litigant….” 22.Lastly, in the celebrated case of “Ivita – Versus - Kyumbu [1984] KLR” the court laid down the test to be applied in applications such as the one before me in the following terms:-“…. the test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and defendant; so, both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time…. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay and that justice can still be done to the parties notwithstanding the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time. Where the defendant satisfies the court that there has been prolonged delay and the plaintiff does not give sufficient reason for the delay, the court will presume that the delay is not only prolonged but it is also inexcusable and in such case the suit may be dismissed.” 23.As already elaborately narrated above, the Appellants/Respondents herein vide a Record of Appeal dated 16th September, 2024 and filed on even date commenced this appeal against the entire Judgement and Decree of Honourable Ndegwa Wahome member of business premises and rent tribunal in BPRT Cause No 182 of 2023 which was delivered on 16th April, 2024. 24.On several occasions, the Appellants/Respondents through their duly appointed Counsel on record, whenever the matter is fixed for taking direction on the admission and taking direction of its disposal, had perennially been causing adjournment of this matter for one reason or the other. These has included, informing court of the need to cause an amendment to the appeal. Indeed, the Honourable Court has on record and wishes to enumerate them herein for ease of reference. On 18th February, 2025 the court directed that the Respondent be served with a Supplementary Record of Appeal. Initially, the Respondents Counsel had intimated to court that certain crucial documents were not in the record of appeal. It was agreed that a formal letter be done outlining the documents to be included in the record. On 5th March, 2025 the court gave directions for a meeting to be held jointly between counsels on record with a view of identifying the documents and issues to be considered in the computation of the record of appeal. 25.On 4th June, 2025 the matter yet again came up for mention for further directions and compliance. The Counsel for the Respondent/Applicant informed the court that the Appellants/Respondents’ Counsel was yet to pick documents from his offices for compilation of the Supplementary Record of Appeal as agreed, Counsel applied for dismissal of the suit for want of prosecution. 26.On 16th July, 2025, the parties yet again appeared before court where Mr Mwawasaa Counsel for the Appellants/Respondents proposed on withdrawing the filed record of Appeal and file a new record. By consent of parties it was agreed that a fresh record of appeal be filed and failure to which the court would proceed to dismiss the appeal. On 19th January, 2026 the court gave a further mention to confirm progress in compliance. 27.To date, there has not been any record filed other than the one previously filed. It is trite that the power to dismiss a suit or an action is a discretionary one which discretion must be exercised judiciously. In the case of:- “Naftali Onyango – Versus - National Bank of Kenya [2005] e KLR”, the court reiterated the burden of proof a defendant seeking for dismissal of suit for want of prosecution must meet. Citing Salmon L.J. in the case of: “Allan – Versus - Sir Alfred MC Alphine and sons Ltd [1968] 1 ALL ER 543”, F. Azangalala J (as he then was) stated as follows: -“The Defendant must show:i.That there had been inordinate delay. What is or is not inordinate delay must depend on the facts of each particular case. These vary infinitely from case to case but it should not be too difficult to recognize inordinate delay when it occurs.ii.That this inordinate delay is inexcusable. As a rule, until a credible excuse is made out the natural inference would be that it is inexcusable.iii.That the Defendants are likely to be seriously prejudices by the delay. This may be prejudice at the trial of issues between themselves and the plaintiff or between themselves and the plaintiff or between each of other or between themselves and third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule, the longer the delay the greater the likelihood of prejudice at trial.” 28.Having outlined the history of the appeal herein, I reiterate the umpteenth times that it is clear that the Appellants/Respondents had never been keen, willing nor ready on having to dispose off the appeal. I fully concur with the assertion by the Respondent/Applicant that the Appellants/Respondents lost interest in the appeal after all the status quo to wit whereby they were enjoying Stay of execution orders issued by this Court on 29th July, 2024 at the chagrin of the Respondent/Applicant, who was elderly and undergoing medical health challenges but could not obtain any economic value from the rental income from the suit premises to meet his obligations including pay medical bills. 29.It is my firm belief that the prolonged period from the time Judgement was issued in favour of the Respondent/Applicant to date is not only a miscarriage of justice but a hindrance to access to justice. I am in agreement with Hon. Justice G.V. Odunga in the case of:- “Republic – Versus – Attorney General and Another Exparte James Alfred Koroso”, where the Learned Judge expressed himself thus on the issue of access to justice: -“Access to justice cannot be said to have been ensured when persons in whose favour judgments have been decreed by courts or tribunals of competent jurisdiction cannot enjoy the fruits of their Judgments due to road blocks placed on their paths by actions or inactions of others.” 30.Furthermore, in the given circumstances, I deliberately do seek refuge from the legal Maxim enshrined in the provision of Article 159 ( 2 ) ( b ) to wit:- “Justice Delayed is Justice Denied” and that “Litigation MUST come to an end”. Therefore, based on the foregoing, the court shall not be hesitant in dismissing the appeal for want of prosecution as a lot of leniency has so far been extended to the said party overtime. In the premise the Appellants/Respondents have failed to explain to court the reason for not proceeding but has sought to amend the record which has not taken place even after been allowed by the court to do so within the specified time as per the court directions. Hence, I discern that the application by the Respondent/Applicant herein must succeed. It is allowed and the prayers sought are granted accordingly. Issue No. b). Who bears the costs of the application? 31.It is trite law that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of a legal action or proceeding in any litigation. The proviso under the provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events it means the result or outcome of the legal action or proceedings thereof. In the case of: “Reids Heweet & Company – Versus – Joseph AIR 1918 cal. 717 & Myres – Versus – Defries (1880) 5 Ex. D. 180, the House of the Lords noted:-“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate Issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular Issue should go to the party who succeeds upon it…..” 32.From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. In the instant case, the Respondent/Applicant herein has successfully established his case. Thus, the Respondent/Applicant is entitled to Costs for the dismissed appeal thereof to be paid by the Appellant. V. Conclusion and final orders 33.Consequently, upon conducting an elaborate analysis of the issues set out herein, this Honourable Court is of the opinion that the application for dismissal of the appeal for want of prosecution is merited. Thus, specifically, the Honourable Court proceeds to grant the following orders:a.THAT the Notice of Motion application dated 5th December, 2025 be and is hereby found to be meritorious and hence allowed.b.THAT the Appeal herein being the Memorandum of Appeal dated 17th May, 2024 and a 110 Pages Record of Appeal dated 16th September, 2024 against the Respondent SAID EDWARD NZARO be and is hereby dismissed for want of prosecution pursuant to the provision of Order 42 Rules 20 and 35 of the Civil Procedure Rules, 2010.c.THAT costs of the Notice of Motion application and the Appeal be awarded to the Respondent to be borne by the Appellant. It is ordered accordingly. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 29TH DAY OF JUNE.2026HON. MR. JUSTICE L.L NAIKUNI,ENVIRONMENT & LAND COURTATKWALE.Ruling delivered in the presence of: -a. Mr. Daniel Disii, the Court Assistant.b. Mr. Mariaria Advocate for the Respondent/Applicant.c. No appearance for the Appellant/Respondent.