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ELCDismissedNot stated in judgment

Chacha v Chacha (Environment and Land Appeal E05 of 2023) [2024] KEELC 5420 (KLR)

Environment and Land Court
15 July 2024
GOG.M.A. Ongondo
270 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an appeal before the Environment and Land Court at Migori, commenced by an appellant in person through a Memorandum of Appeal dated 20th April 2023. The appeal attacked the trial Magistrate's decision on two principal grounds: first, that the Magistrate denied the appellant access to the respondent's last submissions before judgment, resulting in an effectively ex parte judgment; and second, that the Magistrate failed to consider allegations of fraud, contempt and/or perjury arising from the respondent's affidavits, counterclaim and documents, and made no orders on those allegations. On the hearing date, the appellant, though duly served as evidenced by an affidavit of service sworn on 29th March 2024, was absent without any reason. Counsel for the respondent, Mr. B. Singei, urged the court to dismiss the appeal with costs in the interest of justice. The court, guided by Article 159(2)(b) of the Constitution and sections 1A, 1B, 3 and 3A of the Civil Procedure Act together with section 3 of the Environment and Land Court Act, held that the appellant had been given a fair opportunity to be heard, citing Ogada v Mollin [2009] KLR 620. Concluding that the respondent's prayer had merit, the court dismissed the appeal with costs to the respondent. Judgment was delivered in open court at Migori on 15th July 2024 by G.M.A. Ongondo, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal should be dismissed for want of prosecution/appearance where the appellant, though served, is absent without reason
  2. 2.Whether the respondent's prayer to dismiss the appeal with costs should be allowed

Key legal issues

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01

Whether the appeal should proceed where the appellant is absent despite service

Holding

The appeal was dismissed with costs as the appellant, though served, absented himself without reason and the court was guided by the overriding objective

Reasoning

The court found service was proved by an affidavit of service sworn on 29th March 2024 and that the appellant was absent without explanation. Counsel for the respondent urged dismissal with costs in the interest of justice. Guided by Article 159(2)(b) and the Civil Procedure Act's overriding objective, the court held the respondent's prayer had merit and dismissed the appeal.

p. 1

Legal principles established

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  • A party duly served and absent without reason has been given a fair opportunity to be heard, justifying dismissal of the appeal

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

GO
majority

Wrote the judgment

On appeal from
Magistrates' Court (trial Magistrate)
Jurisdiction invoked
Article 159(2)(b) of the Constitution of Kenya, 2010; sections 1A, 1B, 3 & 3A of the Civil Procedure Act (Cap. 21); section 3 of the Environment and Land Court Act, 2015

Relief refused

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The appellant's appeal (including grounds on denial of access to submissions and alleged fraud/perjury)

The appellant was duly served but was absent without any reason, and the respondent urged dismissal with costs

p. 1

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the premises, the respondent's prayer has merit. This Appeal is hereby dismissed with costs to the respondent.
p. 2Final orders - dismissal of appeal for non-appearance
The appellant has been given a fair opportunity to be heard as stated in paragraph 2 hereinabove; see also Ogada v Mollin [2009] KLR 620.
p. 1Fair hearing where party served and absent

Issues in the judgment

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minor

The judgment refers to 'the instant Appeal' yet the parties are styled appellant/respondent; the memorandum of appeal grounds are set out but no appeal number or lower-court case details are given

minor

Inconsistent citation of the Environment and Land Court Act - described as '2015 [2011]'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chacha v Chacha (Environment and Land Appeal E05 of 2023) [2024] KEELC 5420 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5420/eng@2024-07-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.