Maria Mutisya v Kienzl Hemuth [2020] KECA 794 (KLR)
The bottom line
#The Court of Appeal struck out a property owner's application for more time to appeal because she had two law firms chasing the same case in different courts.
What this practically means
#Executive summary
#Key legal issues
#Abuse of court process by parallel legal representation in different fora
The simultaneous engagement of two firms of advocates pursuing different applications over the same matter in different courts is untenable and an abuse of process justifying striking out the application
The Court found the applicant had instructed Gicharu Kimani & Associates for the extension of time application while retaining Okanga & Company Advocates for a stay application in Mombasa over the same judgment. The Court held this untenable because it could result in contradictory orders in the same matter, and on that basis alone struck out the application.
Principles governing extension of time
A party seeking extension of time must lay a basis to the satisfaction of the court, including an explanation for the delay, absence of prejudice to the respondent, and whether the application is brought without undue delay
Relying on the Supreme Court's decision in Salat vs. IEBC, the Court restated that extension of time is discretionary and equitable, decided case by case, requiring the applicant to satisfy the court on the explanation for delay, prejudice, undue delay in making the application and public interest.
Adequacy of the applicant's explanation for delay
A sweeping, unexplained attribution of delay to an 'erstwhile advocate on record' does not lay a basis for extension of time, particularly where that same firm continues to act for the applicant in a parallel application
The Court found the explanation unclear and noted the supposed 'erstwhile advocate' (Okanga & Company) was still on record for the applicant in the Mombasa stay application. It held it was not evident the applicant had laid a basis for the exercise of discretion in her favour, but refrained from expressing concluded views since the application was already found incompetent.
Legal principles established
#- A party cannot have separate firms of advocates pursuing different applications in different fora over the same matter; doing so is an abuse of the court process and grounds for striking out the application
- Extension of time is an equitable remedy, not a right, granted at the court's discretion to a deserving party who must explain the delay and lay a basis for the relief
Court orders
#- 1.The application presented by the applicant on 1st August 2019 is struck out with costs to the respondent
- On appeal from
- Environment and Land Court at Mombasa
- not stated in the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Court of Appeal to extend time within which to file a record of appeal (Rule-based extension of time application; the specific rule is not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maria Mutisya v Kienzl Hemuth [2020] KECA 794 (KLR)", Case Analysis (2020). Civil Application No. 1 of August 2019 (as presented on 1st August 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/794/eng@2020-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.