Malonza Maiko v James Kisilu Mang’eli [2017] KEHC 7007 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

CIVIL APPEAL NO. 4 OF 2012

MALONZA MAIKO …………………………………………………APPELLANT

VERSUS

JAMES KISILU MANG’ELI …………........……………………….RESPONDENT

RULING

1. In the Application dated 18th September, 2013, the Respondent is seeking for the dismissal of the Appeal for want of prosecution.

2. The Application is premised on the grounds that it has been over one (1) year since the appeal herein was lodged; that the Appellant has never served the Record of Appeal or set down the said Appeal for directions and that is in the interest of justice that the Appeal be dismissed.

3. In response, the Respondent’s advocate deponed that the Application is bad in law because Section 79B of the Civil Procedure Act has not been complied with.

4. According to counsel, the court has never responded to his letter inquiring on whether or not the appeal has been admitted and that the current Application is premature and should be dismissed.

5. In his submissions, the Respondent’s advocate submitted that the Appellant has never set down the appeal for directions or undertaken any steps to prosecute the appeal; that the letter of 17th January, 2013 was done a year after the appeal was lodged and that the Appellant has failed to abide by the provisions of Order 42 Rule 13(4) of the Civil Procedure Rules.

6. The Appellant’s counsel submitted that it is only after directions have been given that an appeal may be dismissed for want of prosecution; that directions in this matter have not been given and that the orders sought by the Respondent do not lie.

7. The Appellant filed the Memorandum of Appeal herein on 10th January, 2012.

8. According to the said Memorandum of Appeal, the Appellant was aggrieved by the findings and orders of the Eastern Province Land Disputes Appeals Committee that were made on 8th July, 2011.

9. The record shows that on 21st January, 2013, the Appellant’s advocate wrote to the Deputy Registrar of this court inquiring on whether “the appeal herein has been admitted”.  That letter did not elicit any response from the Deputy Registrar.

10. It is the Appellant’s arguments that unless and until an appeal is admitted for hearing by the court, the same cannot be dismissed for want of prosecution.

11. Order 42 Rule 11 of the Civil Procedure Rules provides that upon filing of the appeal, the Appellant shall within thirty (30) days cause the matter to be listed before a judge for directions under Section 79B of the Act.

12. Section 79B of the Civil Procedure Act on the other hand provides that before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree, he may, notwithstanding Section 79C, reject the appeal summarily.

13. Section 79B of the Act is supplemented by Order 42 Rule 13(4) of the Civil Procedure Rules which provides that before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on record: the Memorandum of Appeal, the pleadings, the notes of the trial magistrate, all affidavits and other documents whatsoever put in evidence before the magistrate and the judgment or order appealed against.

14. In a nutshell, the court can only give directions pursuant to the provisions of Section 79B and Order 42 Rule 11 after the Appellant has filed “a Record of Appeal” constituting the documents listed under Order 42 Rule 13(4) of the Civil Procedure Rules.

15. The court cannot give directions in respect to an appeal without perusing all the materials that were placed before the trial court, including the judgment or order appealed from.

16. While giving directions, the court may summarily reject an appeal. How then can the court reject or admit an appeal without looking at the entire record of the lower court?

17. From the above analysis of the law, it follows that this court could only have given its directions after the filing of the Record of Appeal, which the Appellant has never done since he filed his Memorandum of Appeal in the year 2012.

18. Indeed, Order 42 Rule 35(2) of the Civil Procedure Rules allows the court on its own motion to dismiss a Memorandum of Appeal if it is not set down for hearing within one (1) year.

19. If the court can dismiss a Memorandum of Appeal that has not been set down for hearing within one (1) year, it follows that a party can apply for the dismissal of a Memorandum of Appeal that has not been set down for directions or hearing within one (1) year.

20. Having not filed the Record of Appeal since the year 2012 to enable the court “admit or reject” the appeal, and in the absence of any reason as to why the said Record of Appeal has never been filed, I find that the Appellant has lost interest in prosecuting the appeal.

21. In the circumstances, the Memorandum of Appeal filed herein is dismissed with costs for want of prosecution.

DATED AND DELIVERED AT MACHAKOS THIS 17THDAY OF MARCH, 2017.

OSCAR A. ANGOTE

JUDGE