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Court of AppealStruck OutCivil Application No. 1 of August 2019 (as presented on 1st August 2019)· [2020] KECA 794 (KLR)

Maria Mutisya v Kienzl Hemuth [2020] KECA 794 (KLR)

Court of Appeal of Kenya
3 April 2020
972 words in judgment
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by S. Gatembu Kairu, JA, on an application filed on 1st August 2019 seeking extension of time within which to file a record of appeal. The intended appeal challenged a judgment of the Environment and Land Court at Mombasa delivered on 20th September 2018, which declared that Subdivision Number 1723 (Original No. 386/11) Section III Mainland North - previously registered in the joint names of the parties - belonged solely to the respondent, ordered the applicant's name expunged from the register, and permanently restrained her from dealing with the property. After a notice of appeal was filed in September 2018, the applicant delayed over ten months before moving for extension of time, blaming her 'erstwhile advocate on record'. The respondent opposed, revealing that the applicant had simultaneously retained Okanga & Company Advocates to prosecute a stay application (Civil Application No. 50 of 2019) in Mombasa over the same judgment, while Gicharu Kimani & Associates presented the present application. The Court held this parallel representation untenable and an abuse of process capable of producing contradictory orders, and on that basis alone struck out the application with costs to the respondent. Applying the Supreme Court's principles in Salat vs. IEBC, the Court further observed that, even on merits, the applicant had not laid a basis for extension of time, but refrained from expressing concluded views on the merits. The application was struck out; the intended appeal remains unresolved.

Key legal issues

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01

Abuse of court process by parallel legal representation in different fora

Holding

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

Reasoning

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.

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02

Principles governing extension of time

Holding

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

Reasoning

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.

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Adequacy of the applicant's explanation for delay

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application presented by the applicant on 1st August 2019 is struck out with costs to the respondent

Authorities

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Cases cited (1)

  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    Supreme Court Application No. 16 of 2014 [2014] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.