RULING
(Being an appeal from the judgment of the Senior Principal Magistrate Hon. Chrispine N.C. Oruo (SPM) delivered on the 28th October, 2025 in Rongo ELC No. E005 of 2024)
INTRODUCTION
1. This is an appeal arising from the judgment of Honourable Chrispine N. C. Oruo, Senior Principal Magistrate, delivered on 28th October, 2025 in Rongo CMCC No. E005 of 2024 wherein the trial magistrate gave judgment in favour of the Plaintiff. The Appellant filed a Memorandum of Appeal dated 25th November, 2025 on even date. In it were six grounds which were as follows:
1. The learned trial Magistrate erred in law and in totally ignoring the appellant’s evidence as presented during the hearing.
2. The learned trial Magistrate erred by ignoring the documentary evidence presented by the Appellant during trial.
3. That the learned trial Magistrate erred in Law by ignoring the issue of adverse possession partly raised by the Appellant herein having occupied the suit parcel LR. Kamagambo/Kanyajuok/1147 for the past 40 years.
4. THAT the learned trial Magistrate erred by holding that the Respondent’s father Purchased the suit parcel without any documentary proof of sale.
5. The Learned trial Magistrate erred By not considering the fact that the respondent had their alternative parcel and why in to deprive the appellant of their rightful parcel.
6. The learned Magistrate By failing to consider section three of the Law of contract that requires proof of sale to be evidenced in writing.
2. This set the stage for the procedural steps for determining an appeal to kick in.
BRIEF HISTORY
3. After the Appellant of filed the Memorandum of Appeal he did not take any step, particularly as required under Order 42 Rule 2 and 11 of the Civil Procedure Rules. Nevertheless, in the course of time the original court file of the lower court was forwarded to this Court. On 18th of February 2026 the Registry on its own motion placed the appeal file before the learned judge for admission or rejection of the appeal in terms of Order 42 Rule 11 of the Civil Procedure Rules and Section 79B of the Civil Procedure Act.
4. This Court carefully read the proceedings of the original file and compared with the Memorandum of Appeal. It opined that the appeal should be admitted for hearing. It did so and gave further directions that it be disposed of by way of written submissions before one judge on one day. Further, that the appellant was to the Record of Appeal in 30 days and serve it. The judge then fixed the Appeal for mention on 23rd March 2026 for confirmation of compliance.
5. On the material date a learned counsel for respondent was the only one who attended court for the mention. He indicated that the appellant had never served him with the Memorandum of Appeal or any other document. Further, that he only learnt of the existence of the appeal when his client was extracting he decree for execution. He then visited the lower court registry and was informed that the lower court file had been forwarded to this court. He traveled from Rongo court to Migori law courts and obtained copies of the proceedings. Having noted that the appellant had not complied with the directions of the court he prayed that the appeal be dismissed but the court declined to do so. Instead, in the interest of justice, the court directed that the respondent’s counsel serves the appellant’s advocate with a hearing notice and the directions of the court. These were that the appellant submits in 21 days and serves the Respondent and the latter submits in 21 days and serves the Appellant. The court fixed the appeal for hearing on 15th of June 2026.
6. When the 15th day of June 2026 arrived only learned counsel for the Respondent was the only one in attendance once more and no compliance had been made. The Court once more indulged the appellant by fixing the hearing on 29th June 2026 and directing that the appellant be served once more.
DISMISSAL
7. On 29th June 2029, neither the Appellant nor his counsel attended court despite service. They also had not complied with the directions of the Court. The Respondent’s counsel passionately prayed for the dismissal of the appeal. He added that his client had suffered a lot in the hands of the appellant yet the latter dis not want him to realize the fruits of his judgment, and that the appeal was just meant to abuse the process of court.
8. This court has considered the prayer made by the respondent. First, it denotes that directions of a court carry the weight orders or decrees of a court. They are not mere suggestions to parties. They ought to be obeyed in the same way orders and decrees are to be obeyed. Failure to follow them attracts consequences on the defaulting party. What these may constitute is governed by the statute or Rules of procedure. They include the sanctioning of a party, striking out their pleadings, ordering the payment of costs, and, although not limited to these only, in instances where it is clear to the court processes is being abused dismissal of that party’s claim or appeal is granted for that matter.
9. I have considered the circumstances of this case. I have noted, and the record bears, that the Appellant only instituted the instant appeal and went to sleep. He never served the Memorandum of Appeal or filed and served the Record of Appeal on the Respondent despite being directed to do so. Further, despite the fact that the caught has indulged the appellant on more than two occasions and directed that he complies with its directions, he has never done or bothered to do it. He has ignored and/ or deliberately failed to comply with the directions of this court. I thus find this behavior untenable. It is akin to, and indeed is, an abuse of the process of this court, and goes contrary to Overriding Objectives of this court as provided for under Section 1A of the Civil Procedure Act which is that disputes should be disposed of in a just, expeditious, proportionate and affordable manner. It is for those reasons that I find and agree with the respondent that this appeal is fit for dismissal. I hereby dismiss it with costs to the respondent.
10. It is so ordered
Ruling dated, signed and delivered virtually via the Teams Platform this 29th day of June 2026.
Hon. Dr. iur Nyagaka,
Judge
In presence of,
Mr. Anyona for the Respondent