Mctough v Bhabhubhai Construction Company Ltd & 2 others (Environment and Land Appeal E085 of 2024) [2025] KEELC 8089 (KLR)
The bottom line
#The Environment and Land Court upheld the dismissal of a land suit that sat idle for about ten years, confirming that courts will not rescue plaintiffs who cannot explain lengthy, unexplained delay.
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 trial Magistrate's discretion in dismissing the Appellant's suit for want of prosecution was properly exercised
- 2.Whether the appellate court should interfere with the exercise of discretion by the trial court
Key legal issues
#Whether the dismissal of the suit for want of prosecution under Order 17 Rule 2(1) and 3 of the Civil Procedure Rules was a proper exercise of discretion
Yes; the trial court considered the law, facts and decided cases, found the delay inordinate and inexcusable, and the appellate court declined to interfere
The power under Order 17 Rule 2 is discretionary and must be exercised judiciously, guided by fixed legal principles and the facts. The suit had been in court for about 10 years; over one year elapsed with no step taken after the matter was last in court, and the Appellant offered no evidence of settlement negotiations or plausible explanation for the delay in substituting the deceased 2nd Defendant. Justice is for all parties, and the Respondents waited 10 years.
On what basis may a first appellate court interfere with the trial court's discretion
Only where the discretion was clearly wrong - where the judge misdirected himself, acted on wrong matters, or failed to consider relevant matters, resulting in injustice
Relying on Shah v Mbogo, the court held that interference is warranted only where the discretion was exercised on wrong principles or clearly wrongly, occasioning injustice. Having found that the trial court considered the law, the facts and decided authorities, and that the Appellant could not explain the delay, the court found no basis to disturb the ruling dismissing the suit.
Legal principles established
#- An appellate court will not interfere with the exercise of a trial court's discretion unless satisfied that the discretion was exercised on wrong principles or was clearly wrong, resulting in injustice
- To exercise discretionary power judiciously is to be guided by sound principles of law, the unique facts of the case, and good sense and judgement, not sympathy or caprice
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the 1st and 3rd Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court at Kisumu
- Kisumu CMC EL CASE NO.44 OF 2019
- Jurisdiction invoked
- First appeal under sections 1A, 1B and 3A of the Civil Procedure Act and Order 17 Rules 2(1) and 3 of the Civil Procedure Rules, 2010
Relief refused
#Setting aside the ruling of 18th March 2022 and reinstatement of the suit
The trial court judiciously exercised its discretion under Order 17 Rule 2; the delay of about 10 years was inordinate and inexcusable and no plausible explanation was given
Costs
Costs of the lower court and of the appeal awarded to the 1st and 3rd Respondents
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.
I find no reason to interfere with the exercise of discretion by the trial court. I find that the appeal lacks merit and hereby dismiss it. Costs to the 1st and 3rd Respondents. Orders accordingly.
It is evident from the proceedings that the Appellant could not explain the delay. There was no evidence for example that parties had tried to engage in negotiation for out of court settlement. There is no explanation why no action was taken for the period of over one (1) year
To exercise discretionary power judiciously is to be guided by the sound principles of law, the unique facts of the case and good reasoning or good sense and judgement on the part of the judicial oficer.
An appellate court will interfere if the exercise of the discretion is clearly wrong because the judge has misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration matters which it should be taken into consideration
Issues in the judgment
#The judgment states the application resulting in the ruling was filed in 2011, but elsewhere records the application as dated 19th July, 2021
Inconsistent dates for when the matter was last in court: 25th February, 2020 in the Respondents' submissions versus 25th January, 2020 in the Supporting Affidavit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mctough v Bhabhubhai Construction Company Ltd & 2 others (Environment and Land Appeal E085 of 2024) [2025] KEELC 8089 (KLR)", Case Analysis (2025). Kisumu ELC Appeal No. E013 of 2024 (arising from Kisumu CMC EL CASE NO.44 OF 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8089/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.