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Court of AppealAllowedCivil Application No. 83 of 2016 (UR 57/2016)· [2017] KECA 498 (KLR)

Pauline Yebei & another v Estate of Kiprotich Arap Letting represented by Andrew Kiprotich Kiprono [2017] KECA 498 (KLR)

Court of Appeal
15 June 2017
EGE.M. GithinjiHOHannah OkwenguJMJ. Mohammed
1,432 words in judgment
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The bottom line

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Kenya's Court of Appeal halted land eviction proceedings, ruling that delayed appeals can proceed when a lawyer's inaction, not the client's, caused the delay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Eldoret (Githinji, Okwengu and Mohammed, JJ.A.) on a single notice of motion by Pauline Yebei and Samuel Kutto seeking stay of execution of a judgment and decree of the Environment and Land Court at Kitale (Obaga, J.) and an extension of time to file an appeal against the ruling of 25th June 2015 dismissing their application to set aside the judgment. The High Court had declared that the suit land belongs to Kiprono Philip Leting and that the applicants had no proprietary interest in it, and had issued a permanent injunction restraining them from cultivating it. The applicants argued that they were never served with summons, that their defence was dismissed at an interlocutory stage without an opportunity to adduce evidence, that a warrant of arrest had issued in execution of the decree, and that any delay was attributable to their erstwhile advocates. The respondent opposed, citing inordinate delay and absence of an arguable appeal. Applying the settled twin principles under Rule 5(2)(b) from Ishmael Kagunyi Thande v Housing Finance Kenya Ltd, the court found the intended appeal arguable and held that a warrant of arrest already issued placed the applicants in imminent danger, tilting the balance in favour of a stay. Relying on Muchugi Kiragu, it also found the delay excusable and non-prejudicial and extended time. The motion dated 10th October 2016 was allowed: execution of the judgment of 23rd September 2014 was stayed, both parties were restrained from dealing with the suit land, and the applicants were given 21 days to file and serve the record of appeal, with costs of the motion in the appeal.

Key legal issues

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01

Twin principles for stay under Rule 5(2)(b)

Holding

The court applied the settled twin test: an arguable appeal and the nugatory aspect, and found both satisfied on the facts.

Reasoning

The court adopted its earlier statement in Ishmael Kagunyi Thande v Housing Finance Kenya Ltd as the governing test. It found the appeal arguable on whether the defence was dismissed at an interlocutory stage without considering the applicants' evidence, and found the nugatory limb satisfied because a warrant of arrest had already been issued, placing the applicants in imminent danger of arrest.

p. 3
02

Extension of time and delay attributable to advocates

Holding

The court extended time, holding that the delay occasioned by the erstwhile advocates was excusable and that the respondent would suffer no prejudice.

Reasoning

Relying on Muchugi Kiragu, the court noted that extension of time is normally granted where the intended appeal is arguable and it would be wrong to shut the applicant out unless the delay was inexcusable and the opponent prejudiced. The applicants blamed their erstwhile lawyers for failing to file the record of appeal, and the court found the circumstances excusable and no prejudice to the respondent.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin conditions that the appeal or intended appeal is arguable and that, unless stay or injunction is granted, the success of the appeal will be rendered nugatory.
  • The discretion to extend time under Rule 4 is unfettered and may be exercised where the delay is excusable and the opponent will not suffer prejudice, particularly where the intended appeal is arguable.

Court orders

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  1. 1.Stay of execution of the order issued on 23rd September 2014 in terms of prayers 2 and 3 of the Notice of Motion
  2. 2.No dealing whatsoever with the suit land by either party pending the hearing and determination of the intended appeal
  3. 3.Time within which to file and serve the record of appeal extended in terms of prayer 3 of the application
  4. 4.Applicants granted leave to file and serve the record of appeal within 21 days from the date of the ruling
  5. 5.Costs of the Motion in the Appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42, Rule 6
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 47
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (2)

  • Ishmael Kagunyi Thande vs. Housing Finance Kenya Ltd
    Civil Appln No. Nai 157 of 2006 (unreported)
  • Muchugi Kiragu vs. James Muchugi Kiragu & Another
    Civil Application No. Nai 356 of 1996
On appeal from
High Court of Kenya at Kitale, Environment and Land Court
ELC No. 9 of 2014
Jurisdiction invoked
Rules 1(2), 4, 5(2)(b) and 47 of the Court of Appeal Rules; Order 42 Rule 6 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Pauline Yebei & another v Estate of Kiprotich Arap Letting represented by Andrew Kiprotich Kiprono [2017] KECA 498 (KLR)", Case Analysis (2017). Civil Application No. 83 of 2016 (UR 57/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/498/eng@2017-06-15

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