Kigori v Oloo & another (Environment and Land Appeal 4 of 2019) [2024] KEELC 5284 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to kill a stalled land appeal but warned the appellant: file the record within 21 days or lose automatically.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application dated 10th May, 2022 by the Applicants to have the appeal lodged by the Appellants be dismissed for want of prosecution has any merit.
- 2.Who will bear the costs of the Notice of Motion application dated 10th May, 2022.
Key legal issues
#Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35 and the court's inherent powers
The application failed. No directions had ever been given as the Memorandum of Appeal was never admitted, and the Appellant had taken genuine steps to prosecute the appeal, including pursuing typed proceedings and the misplaced original file; delay attributed to Covid-19 was inexcusable but dismissal before hearing would be draconian.
The court noted Order 42 Rule 35(1) permits dismissal only after directions under Rule 13, which were never given since the appeal was never admitted. While inherent powers permit dismissal absent directions where delay is contumelious, the Appellant had pursued the appeal through letters and mentions, and the Deputy Registrar had been summoned over the missing original file. Justice could be done despite the delay subject to pre-conditions and throw-away costs.
Whether the provisions cited by the Applicants (Section 3A CPA and Order 17 Rule 2) applied
Those provisions apply only to suits, not appeals, but since the Applicants never raised the point the court did not rest its decision on it and determined the application on its own merit.
The court observed, with respect, that Section 3A of the Civil Procedure Act and Order 17 Rule 2 of the Civil Procedure Rules, 2010, strictly speaking apply to suits rather than appeals. Dismissal of appeals is instead governed by Order 42 Rules 20 and 35. However, because the parties had not litigated this point, the judge declined to base the decision on it and considered the merits.
Whether the Covid-19 pandemic excused the Appellant's delay
No. The first Covid-19 case in Kenya was reported in March 2020, months after the orders of February 2019, and e-filing directions by the Chief Justice meant an represented litigant could not blame registry closures.
The court took judicial notice that Covid-19 first hit Kenya in March 2020, almost eight months after the impugned orders, rendering the excuse illogical, misleading and baseless. Furthermore, the Chief Justice had issued directions permitting e-filing during the pandemic, so the Appellant, being represented by an advocate, could not attribute the failure to file the Record of Appeal to closure of the registries.
Costs of the application
Although costs follow the event, the court elected not to award costs of the application, but granted the Respondents throw-away costs of Kshs. 20,000/= with a default clause.
The court affirmed the well-established principle under Section 27(1) of the Civil Procedure Act that costs follow the event and the successful party is typically entitled to costs absent compelling reasons. In the present case, however, balancing the parties' conflicting interests and the need to preserve the suit land, the court exercised its discretion to make no award of costs on the application while granting throw-away costs to secure expedition.
Legal principles established
#- As a general rule, an appeal cannot be dismissed under Order 42 Rule 35(1) unless directions have been given under Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010.
- Notwithstanding the general rule, where there are sufficient reasons the court may invoke its inherent powers and dismiss an appeal for want of prosecution even where directions have not been given.
Court orders
#- 1.The Notice of Motion application dated 10th May, 2022 by the Respondents is found to lack merit and is dismissed with no orders as to costs, subject to fulfilment of the pre-conditions set out.
- 2.The Appellant to file the Record of Appeal within 21 days from the date of the ruling.
- 3.The appeal to be listed for directions under Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010 on 2nd October, 2024 and judgment on the main appeal to be delivered on 9th December, 2024.
- 4.The Respondents/Applicants awarded throw-away costs assessed at Kshs. 20,000/= to be paid within 14 days; in default, the appeal shall automatically stand dismissed.
- 5.No orders as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Mombasa
- CMCC Land Case No. 41 of 2018
- Jurisdiction invoked
- Appeal from the Chief Magistrate's Court; court exercised inherent powers under Sections 1, 1A, 3 & 3A of the Civil Procedure Act, Sections 3 and 13 of the Environment and Land Court Act, Sections 101 of the Land Registration Act No. 3 of 2012 and Section 150 of the Land Act No. 6 of 2012, and Article 159(2)(b) of the Constitution
Relief refused
#Dismissal of the appeal for want of prosecution
Although the delay was prolonged and inexcusable, the court held that justice can still be done despite the delay since dismissal before substantive hearing is draconian; no directions under Order 42 Rules 11, 13 and 16 had ever been given.
Vacating the orders of 18th February, 2019 and effecting the orders of 13th February, 2019
The court found the application lacked merit; the Appellant had also taken steps to prosecute the appeal, including pursuing the untraceable proceedings and original lower court file.
Costs
Application dismissed with no orders as to costs; Respondents/Applicants awarded throw-away costs of Kshs. 20,000/= payable within 14 days, in default of which the appeal stands automatically dismissed; and there shall be no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
appeals cannot be dismissed under Order 42 Rule 35 (1) unless directions have been given under the provision of Order 42 Rule 11, 13 and 16 of the Civil Procedure Rules, 2010
Where there are suficient reasons, the court can invoke its inherent powers as bestowed on it by the Civil Procedure Act, Cap. 21 and the Rules to dismiss an appeal for want of prosecution even where directions have not been given
the court is of the considered view that in the interest of Justice, Equity and Conscience, justice can still be done despite the delay as dismissal of a matter before party is substantively heard is a draconian action
That the Notice of Motion application dated 10th May, 2022 by the Respondents be and is hereby found to lack merit thus it is dismissed with no orders as to costs subject to the fulfilment of the Pre – condition set out herein
That the Respondents/Applicants is awarded throw away costs assessed at a sum of Kenya Shillings Twenty Thousand (Kshs. 20,000/=) to be paid within 14 days from the date of this ruling. In default, the appeal by the Appellant will automatically stand dismissed thereof
Issues in the judgment
#Party designations are inconsistent: the Applicants (who moved the application) are labelled 'Respondents/Applicants' while the Appellant is at points labelled 'Respondent'; the appearance list also swaps the descriptions, recording the in-person parties as 'Appellants/Respondents' and Mr. Mutisya as appearing for 'Respondents/Applicants'.
The judgment inconsistently refers to the statutory basis for the appeal, citing the transfer of 'Msa Environment and Land Case No. 14 of 2013' while later describing an application filed in 'the former Msa Environment & Land Case No. 14 of 2017'.
The disposition introduces preservation of the suit land ('there will be need to preserve the suit land in the meantime') but no corresponding preservation order appears in the final orders.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kigori v Oloo & another (Environment and Land Appeal 4 of 2019) [2024] KEELC 5284 (KLR)", Case Analysis (2024). Environment and Land Appeal (Mombasa) – arising from CMCC Land Case No. 41 of 2018 (formerly Msa Environment and Land Case No. 14 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5284/eng@2024-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.