https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3583

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **MILIMANI LAW COURTS** **ELCLA E072 OF 2024** **THE RED APPLE LIMITED …………………………………..…………………. APPELANT** **-VERSUS-** **ISSAAC GATHUNGU WANJOHI ….…………………..……………...1ST RESPONDENT** **ISABELLA NYAGUTHII WANJOHI……………………....……………2ND RESPONDENT** **IGAINYA LIMITED…………………………………………….…………3RD RESPONDENT** **RULING** **Introduction** 1. The matter is coming up for determination on the respondent’s application dated 29th April 2026 seeking for the following orders;- 2. **THAT** the application be struck out for want of prosecution. 3. Cost of the application. 4. The application was premised on grounds as in the supporting affidavit sworn by the 1st Respondent Isaac Gathungu Wanjohi. He deponed that the appellant having been dissatisfied with the decision in tribunal Case no 606 2023 filed this appeal and has so far failed to prosecute the same hence this application. 5. That further the appeal is against a stay of execution orders that were not issued which execution has already occurred 6. The applicant has attached an affidavit for service sworn by Duncan Mindo an advocate dated 12th May 2026 indicating that the application was served on the appellant together with the mention notice but the appellant has not responded to the same hence the application is uncontroverted **Analysis and determination** 1. I have considered the application, the central issue for determination arising therein is whether a case has been made for the appeal to be dismissed for want of prosecution. The application is unopposed nonetheless the court shall determine it on merit 2. The power to dismiss a suit for want of prosecution is a matter within the discretion of the court which ought to be exercised judiciously. Article 159 (2) (b) of the *Constitution of Kenya,* 2010 pertains to the import of expeditious disposal of suits once they are filed and it enjoins the court in exercising its judicial authority to ensure that justice shall not be delayed 3. The law concerning dismissal of an appeal for want of prosecution is contained in Order 42 Rules 35(1) & (2) of the Civil Procedure Rules which provides as follows:-*Unless within three months after the giving of directions under Rule 13 the appeal shall be set down for hearing, the respondent shall be at liberty to either set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution. If within one year after 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.* 4. In **Njai Stephen Vs Christine Khatilala Andik Civil Appeal No. 248 of 2017** the court summarized the law on appeals under **Order 42 Rule 35 of the Civil Procedure Rules** as follows:- **Order 42 Rule 35 of the Civil Procedure Rules, 2010** envisages two scenarios for the dismissal of an appeal for want of prosecution. The first scenario is when an appellant fails to cause the matter to be listed for directions under **Section 79B of the Civil Procedure Act** as is envisaged in **Order 42 Rule 11 of the Civil Procedure Rules.** The second scenario is that if after service of memorandum of appeal the appeal would not have been set down for hearing, the registrar shall on notice to the parties list the appeal before the judge for dismissal. 1. In the instant case, the memorandum of appeal was filed on 27th May 2023.The record of appeal was filed on the 3rd March 2025 and later an application seeking to stay the proceedings in the lower court dated 12th May 2025 which application was later withdrawn. The court notes that the appellant has since not moved the court in any way in regards to the appeal as no documents have been filed before this court despite the court issuing directions on the 10th June 2025.The appellant appeared in court on the 17th November 2025 confirming that they had not complied and asked for more time to comply. The records show that to date no documents have been filed in court, with the appellant missing all court attendances to date despite service. It is evident that the appellant has not been vigilant to prosecute the appeal as they have not demonstrated efforts in doing so. 2. However, the law under **Order 42 Rule 35(1) of the Civil Procedure Rules** is clear that directions have to be issued before a respondent can take either of the two options given under that provision; either to set the appeal down for hearing or apply for it to be dismissed for want of prosecution. This position was well articulated by the court in **Pinpoint Solutions Limited & Another Vs Lucy Waithegeni Wanderi (as the legal administrator of the Estate of James Nyanga Muchangi) [202]0] eKLR** that:- 3. The provisions of the law relating to dismissal cannot be read in isolation. The bottom line is that directions must have been given before an appeal can be dismissed for want of prosecution. Indeed, there does not appear to be any penalty where an appellant fails to proceed as per **Order 42 Rule 11 and order 42 Rule 13 of the Civil Procedure Rules, 2010.** This court took view of having the appeal listed for hearing on the 17th November 2025. The record is clear that there was direction issued in this matter. The instant application for dismissal is therefore rightfully before this court. **Final disposition** Consequently, I make the following orders 1. Accordingly, the application dated 29th April 2026 has merit and is hereby allowed and the appeal is hereby dismissed for want of prosecution. 2. Costs shall be on the Respondent/Applicant. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **10th** day of **June 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Mr. Mindo** for Respondent **N/A** for Applicant **Philomena W .** Court Assistant