[2023] KEELC 16467 (KLR)
The court found that the appellant's counsel was duly served with the order to file and serve the record of appeal within 21 days but failed to comply and did not provide any explanation for the default. The respondent's application for dismissal was therefore meritorious. In the interests of justice and in...
Source-derived case information.
- Citation
- [2023] KEELC 16467 (KLR)
- Parties
- Appellant: Joseph Ochilo Were; Respondent: Edward Oganga Mbori (Suing as the Legal Representative of the Estate of the Late Isaac Mbori Oyugi)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E008 of 2022
- Procedural Posture
- Environment and Land Appeal / Ruling on Compliance With Court Orders Regarding Filing of Record of Appeal
- Outcome
- appeal dismissed for non-compliance with court orders; costs to the respondent
- Judges
- GMA Ongondo
- Legal Topics
- Appeal Dismissal, Non Compliance With Court Orders, Record of Appeal Filing, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ochilo Were
Appellant
Edward Oganga Mbori (Suing as the Legal Representative of the Estate of the Late Isaac Mbori Oyugi)
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Compliance With Court Orders Regarding Filing of Record of Appeal
Legal Issues
- 1 Whether the appellant complied with the court's order to file and serve the record of appeal within the stipulated period.
- 2 Whether failure to comply with the court's order warrants dismissal of the appeal.
- 3 Whether costs should be awarded to the respondent upon dismissal.
Ratio Decidendi
The court found that the appellant's counsel was duly served with the order to file and serve the record of appeal within 21 days but failed to comply and did not provide any explanation for the default. The respondent's application for dismissal was therefore meritorious. In the interests of justice and in accordance with the Constitution and the Environment and Land Court Act, the court exercised its discretion to dismiss the appeal for non-compliance with its orders. Costs were awarded to the respondent as the successful party.
Court Disposition
appeal dismissed for non-compliance with court orders; costs to the respondent
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
Were v Mbori (Suing as the Legal Representative of the Estate of the Late Isaac Mbori Oyugi) (Environment and Land Appeal E008 of 2022) [2023] KEELC 16467 (KLR) (27 March 2023) (Ruling)
Neutral citation: [2023] KEELC 16467 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal E008 of 2022
GMA Ongondo, J
March 27, 2023
Between
Joseph Ochilo Were
Appellant
and
Edward Oganga Mbori (Suing as the Legal Representative of the Estate of the Late Isaac Mbori Oyugi)
Respondent
Ruling
1. This appeal by way of a memorandum of appeal dated February 17, 2022 was lodged in court on April 5, 2022by the appellant, Joseph Achilo Were through the firm of Odhiambo Ogutu and Company Advocates founded on five grounds including that: -a)The Learned Trial Magistrate erred in law and fact in failing to find that the Appellant did not trespass into the suit property known as Parcel No. Central Kasipul/Kamuma/1875. b)The Learned Trial Magistrate erred in law and fact in failing to grant the Appellant sufficient audience to put his defense.
2. On January 18, 2023, this court ordered as directed, inter alia;“The appellant’s Counsel to file and serve record of appeal in its complete form within 21 days from this date in default, the appeal be dismissed in the spirit ofarticle 159 (2) (b) of the Constitution of Kenya, 2010 and section 3 of the Environment and Land Court Act, 2015 (2011).”
3. Kisaka, learned counsel for the respondent, Edward Oganga Mbori has implored the court to dismiss this appeal as the appellant’s counsel duly served, has failed to comply with this court’s orders of January 18, 2023.
4. Indeed, the appellant’s counsel was duly served has discerned in the affidavit of service sworn on March 9, 2023 by Lucia Mutiva, a duly authorized process server.
5. The appellant’s Counsel has neither complied with the orders of January 18, 2023 nor given any reasons for failure to comply with the same.
6. In the circumstances, I find the application by counsel for the respondent meritorious.
7. A fortiori, this appeal be and is hereby dismissed with costs to the respondent.
8. It is ordered accordingly.
DELIVERED, DATED AND SIGNED AT HOMA BAY THIS 27TH DAY OF MARCH 2023. G.M.A ONG’ONDOJUDGEPresent.1. Ms. Kisaka, learned counsel for respondent2. Mutiva and Ochumba, court assistants.