[2022] KEELC 13449 (KLR)
The court held that the appeal was not ripe for dismissal for want of prosecution because the statutory period of one year since filing the memorandum of appeal had not lapsed, and the original file and certified proceedings had not been forwarded by the trial court. The court found that the delay was not...
Source-derived case information.
- Citation
- [2022] KEELC 13449 (KLR)
- Parties
- Appellant: Jonah K. Toroitich; Appellant: Peter Gicharu Kamau; Respondent: Paul Biwot Chemuta; Respondent: District Land Registrar, Elgeyo/Marakwet County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Iten
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E002 of 2022
- Procedural Posture
- Environment and Land Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal of appeal for want of prosecution dismissed.
- Judges
- L Waithaka
- Legal Topics
- Appeal Dismissal, Want of Prosecution, Record of Appeal, Court Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonah K. Toroitich
Appellant
Peter Gicharu Kamau
Appellant
Paul Biwot Chemuta
Respondent
District Land Registrar, Elgeyo/Marakwet County
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution at this stage.
- 2 Whether the failure to forward the original file and certified proceedings justifies dismissal of the appeal.
Ratio Decidendi
The court held that the appeal was not ripe for dismissal for want of prosecution because the statutory period of one year since filing the memorandum of appeal had not lapsed, and the original file and certified proceedings had not been forwarded by the trial court. The court found that the delay was not attributable to the appellant, as the forwarding of the record was still pending from the trial court. Therefore, the application for dismissal was premature and could not be granted at this stage.
Court Disposition
Application for dismissal of appeal for want of prosecution dismissed.
Orders
- The Executive Officer Iten Law Courts to comply with the letter of 23rd March 2022 and forward the original records/file together with enough certified copies of proceedings to enable the appellant file his record of appeal within 14 days.
Full Case Text
Judgment text and source record
26 paragraphs
Toroitich & another v Chemuta & another (Environment and Land Appeal E002 of 2022) [2022] KEELC 13449 (KLR) (3 October 2022) (Ruling)
Neutral citation: [2022] KEELC 13449 (KLR)
Republic of Kenya
In the Environment and Land Court at Iten
Environment and Land Appeal E002 of 2022
L Waithaka, J
October 3, 2022
Between
Jonah K. Toroitich
1st Appellant
Peter Gicharu Kamau
2nd Appellant
and
Paul Biwot Chemuta
1st Respondent
District Land Registrar, Elgeyo/Marakwet County
2nd Respondent
Ruling
1. The appellant filed his memorandum of appeal on 23rd March, 2022. On the same date, the Deputy Registrar Iten, requested the Senior Principal Magistrate to forward the original file together with certified copies of proceedings. The file and certified proceedings are yet to be forwarded for appeal purposes.
2. When the appeal came for mention on 3rd October 2021, Counsel for the appellant did not attend court. Counsel for the 1st respondent, Mr. Collins Kigen informed the court that he has never been served with a notice of appeal or memorandum of appeal and urged the court to dismiss the Appeal for want of prosecution.
3. Ms Cheruiyot Counsel for the 2nd respondent supported the application for dismissal.
4. The question before this court is whether this court can dismiss the appeal at this stage.
5. The applicable Law on the process of appeals is regulated by the Civil Procedure Act (CPA) and the Civil Procedure Rules (CPR) 2010. Order 42 Rule 35 of the CPR provides for dismissal of an appeal for want of prosecution as herein under;i.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.ii.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 the Judge in chambers for dismissal.
6. In this matter, the memorandum of appeal was lodged on 22nd March, 2022. The original file and certified proceedings have not been forwarded by the trial court. One year has not lapsed since the memorandum of appeal was filed. Although there is no correspondence from the appellant following up with the Deputy Registrar about the entire court record, it is abundantly clear that the trial court has not forwarded the original record and proceedings as directed in the letter dated 23rd March, 2022.
7. Accordingly, I find this appeal is not ripe for dismissal and I make the following orders;i.The Executive Officer Iten Law Courts to comply with the letter of 23rd March 2022 and forward the original records/file together with enough certified copies of proceedings to enable the appellant file his record of appeal within 14 days.
DATED, SIGNED AND DELIVERED AT ITEN THIS 3RD DAY OF OCTOBER, 2022. L. N. WAITHAKAJUDGERuling read virtually in the presence of:N/A for the appellants.Mr. Collins Kigen for the 1st respondent/Paul Biwot Chemuta present in Open CourtMs. Cheruiyot for the 2nd respondentChristine Towett: Court Assistant