Pauline Yebei & another v Andrew W. Kiprono (Suing as the legal representative of the Late Kiprono Arap Letting) [2020] KECA 442 (KLR)
The bottom line
#Kenya's Court of Appeal let a delayed land appeal proceed because the lawyers' mistakes were blamed on the lawyers, not the clients.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of one year, four months and twelve days in filing the application to validate the record of appeal was excusable
Yes - the delay was attributable to the applicants' advocates who took full responsibility and exonerated the clients, making the explanation plausible and excusable.
The court enumerated the advocates' five errors of omission and commission, noted they accepted full responsibility, and relied on line of authority (Owino Ger, CFC Stanbic, Lee G. Muthoga, Catherine Njoguini) refusing to visit an advocate's wrongs on an innocent client where instructions had been given. The clients placed trust in their advocate's workmanship, who was conversant with appellate timelines.
Whether the intended appeal is arguable
Yes - the grounds concerning dismissal of the defence at an interlocutory stage without a hearing raise bona fide issues.
The applicants complained they were never heard on their defence, dismissed at an interlocutory stage, and that the judge refused to set aside ex parte orders. Applying the principle that an arguable appeal is one that ought to be argued fully, not one that must succeed, the court found all grounds arguable. The right to a hearing is constitutionally entrenched and its violation is a breach of natural justice.
Whether the respondent would suffer prejudice
Any prejudice can be compensated by costs payable personally by the applicants' advocates.
The court balanced the applicants' constitutionally underpinned right of appeal against the respondent's interest in enjoying the fruits of his judgment. Noting the applicants remain on the land albeit as trespassers under the impugned decision, the court concluded justice demands compensating the respondent by way of costs payable personally by counsel, avoiding prejudice.
Legal principles established
#- The discretion under Rule 4 is wide, unfettered and does not require 'sufficient reasons'; delay must be satisfactorily explained and prejudice balanced.
- A blameworthy advocate's default should not be visited on an innocent client where the advocate takes full responsibility and instructions were given.
- An arguable appeal need not succeed; it need only raise a bona fide issue for determination.
Court orders
#- 1.The appeal No. 85 of 2017 already filed be and is hereby deemed as properly filed
- 2.The appeal is directed to be processed speedily for expeditious hearing in view of its age
- 3.The respondent will have costs of the application to be paid personally by counsel for the applicants, to be agreed or assessed
- On appeal from
- Environment and Land Court
- Kitale Environment and Land Court Case No. 9 of 2014
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2010; Sections 3A and 3B of the Appellate Jurisdiction Act; Articles 159(2)(d) and 164(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pauline Yebei & another v Andrew W. Kiprono (Suing as the legal representative of the Late Kiprono Arap Letting) [2020] KECA 442 (KLR)", Case Analysis (2020). Court of Appeal Civil Application (in Appeal No. 85 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/442/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.