Maranatha Faith Assemblies & 2 others (Suing as the Representatives of Maranatha Faith Assemblies) v Tembo & 2 others (Suing as Representatives of Pentecostal Evangelistic Fellowship of Africa) [2024] KEELC 1503 (KLR)

Maranatha Faith Assemblies & 2 others (Suing as the Representatives of Maranatha Faith Assemblies) v Tembo & 2 others (Suing as Representatives of Pentecostal Evangelistic Fellowship of Africa) (Environment and Land Appeal E1 of 2020) [2024] KEELC 1503 (KLR) (20 March 2024) (Ruling)

Neutral citation: [2024] KEELC 1503 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment and Land Appeal E1 of 2020

FM Njoroge, J

March 20, 2024

Between

Maranatha Faith Assemblies

1st Appellant

Nathaniel Chenji

2nd Appellant

Rev Elizabeth Kaingu

3rd Appellant

Suing as the Representatives of Maranatha Faith Assemblies

and

Bishop Thomas C. Tembo

1st Respondent

Bishop George Chipa

2nd Respondent

Emmanuel Kahindi Kaleli

3rd Respondent

Suing as Representatives of Pentecostal Evangelistic Fellowship of Africa

Ruling

1. By a chamber summons application dated 4th August 2023 and filed on 15th December 2023 and brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 35 (1) of the Civil Procedure Rules, the Respondents have moved this court to dismiss the present appeal for want of prosecution. The basis of their application is that since 9th October 2020 when the Appellants filed a memorandum of appeal and stay of execution granted, the Appellants have failed to seek directions or set up the appeal for hearing. In support of the application is the supporting affidavit sworn by Emmanuel Kahindi Kaleli on 15th December 2023.

2. The application is opposed. The Appellants filed a Replying Affidavit sworn by Nathaniel Chenji on 24th January 2024, wherein he deposed that the Appellants’ attempts to retrieve copies of proceedings before the lower court to enable them file a record of appeal have been frustrated by the relevant offices within the court; and that if given more time they will ensure that the record is ready and appeal listed for hearing.

3. On 6th February 2024, I directed parties to file written submissions in relation to the present application; the Respondents were to file and serve submissions within 7 days from the said date while the Appellants were to respond within 7 days from the date of service or in any event within 14 days from the date of the order. Undoubtedly, those days have since lapsed and there is no record of any submissions filed by either party. In the circumstances, I see no basis to address my mind to the application. Where the court has ordered an application to be heard by way of written submissions and provided no other manner of disposal, the failure to file submissions, especially on the applicant’s part, is a signal of disinterest. The application dated 4th August 2023 has thus not been prosecuted and it is hereby dismissed with costs to the respondents.

DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 20TH DAY OF MARCH 2024. MWANGI NJOROGEJUDGE, ELC, MALINDI