Baraiwo v Ruto (Civil Application E022 of 2022) [2024] KECA 530 (KLR)
The bottom line
#The Court of Appeal refused to revive a land appeal filed four years late, ruling that blaming a former advocate does not excuse a litigant's own delay.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of the reasons for the delay
Loss of contact with an advocate and financial hardship did not constitute sufficient reason because the applicant did not evidence any effort to pursue her case or apply to appeal as a pauper.
The court acknowledged that Order 44 Rule 1 of the Civil Procedure Rules, 2010 permitted indigent appellants to apply to appeal as paupers. The applicant never invoked that mechanism nor produced evidence of pursuing her case. Since a case belongs to the litigant rather than the advocate, reliance on the former advocate's inaction could not excuse the failure to file the record of appeal.
Whether the 4-year delay was inordinate
A delay of 4 years between the judgment of 28th June 2018 and the application of 7th November 2022 was inordinate in the circumstances.
Guided by Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet, the court held that no fixed period is prescribed but any delay must be satisfactorily explained. As no plausible explanation was offered, the four-year lapse was characterised as inordinate and inexcusable, weighing heavily against the exercise of the Rule 4 discretion.
Arguability of the intended appeal
The intended appeal, concerning adverse possession, was arguable, but arguability alone did not justify extension where the delay was inexcusable and prejudice existed.
The court noted it must not determine merits with finality at this stage, the word 'possibly' prefixing the arguability consideration. Since the bone of contention was adverse possession, the appeal was arguable. However, the court has previously declined to shut out applicants only where their conduct was not inexcusable and the opponent would suffer no prejudice, conditions not met here.
Legal principles established
#- A litigant, not the advocate, owns the case and bears the duty to pursue its prosecution; a mistake or inaction by an advocate does not by itself excuse a litigant's delay.
- There is no prescribed minimum or maximum period of delay for extension of time; what is required is a plausible and satisfactory explanation for the delay.
Court orders
#- 1.Dismissal of the Notice of Motion dated 7th November 2022
- 2.Costs of the application awarded to the respondent
- On appeal from
- Environment and Land Court
- ELC 327 of 2013 (Originating Summons dated 5th June 2013)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Baraiwo v Ruto (Civil Application E022 of 2022) [2024] KECA 530 (KLR)", Case Analysis (2024). Notice of Motion dated 7th November 2022 (Civil Application, Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/530/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.