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ELCDismissedApplication dated 1st September 2014 (arising from Kilifi SRMCC No. 188 of 2008)· [2015] KEELC 609 (KLR)

Samson Chirume & 3 others v Joseph Sulubu [2015] KEELC 609 (KLR)

Environment and Land Court
20 March 2015
1,151 words in judgment
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The bottom line

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A Kenyan court refused to extend time to appeal, ruling that litigants cannot blame their advocate for missing a judgment.

What this practically means

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Executive summary

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This was an application dated 1st September 2014 by intended Appellants seeking leave to appeal out of time against the judgment of Hon. A. M. Obura delivered on 2nd July 2013 and the order issued on 26th June 2014 in Kilifi SRMCC No. 188 of 2008, and for the draft Memorandum of Appeal to be deemed duly filed. The Applicants deponed that their former advocate, the firm of Kanyi J and Company, never informed them of the judgment and that they only learned of it on 31st July 2014 when served with an order. They also contended the lower court lacked jurisdiction and the Plaintiff lacked locus standi. The Respondent opposed, citing inordinate delay of over one year, his ownership derived through inheritance and adjudication, and the Applicants' failure to appeal the Minister's decision of 2005 under Section 29(1) of the Land Adjudication Act, which ordered them to pay Kshs.20,000 per acre or surrender the land. The court applied the Salat decision, holding extension of time is an equitable, discretionary remedy. It found the advocate-blame explanation implausible, holding litigants must be vigilant and cannot hide behind their advocate. Noting the Applicants never appealed either the Minister's decision or the Magistrate's judgment, the court held the lower court was merely enforcing the Minister's decision and the Applicants showed no genuine interest in pursuing their rights. The application was dismissed with costs.

Key legal issues

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01

Whether the Applicants gave a plausible reason for the delay in filing the intended appeal

Holding

The explanation that the former advocate never informed them of the judgment was not plausible; parties must be vigilant and cannot hide behind their advocate's failure one year after judgment.

Reasoning

The court noted judgment was delivered on 2 July 2013 and the Applicants only claimed awareness on 31 July 2014 upon being served. No affidavit was sworn by the former advocate confirming the alleged failure to inform. The court held that a litigant who instructs an advocate must be vigilant and cannot use the advocate, a mere agent, as a shield for ignorance of a judgment a year later.

p. 3
02

Whether the Applicants' conduct disentitled them to the equitable discretion to extend time

Holding

The Applicants never appealed the Minister's 2005 decision under Section 29(1) of the Land Adjudication Act, nor the Magistrate's judgment, showing no interest in pursuing their perceived rights; the lower court was merely enforcing the Minister's decision.

Reasoning

The court observed that the Applicants failed to appeal the Minister's decision of 18 May 2005 ordering payment of Kshs.20,000 per acre, and equally failed to appeal the Magistrate's judgment. There being no law requiring the Minister's decision to be adopted by a court, the lower court suit was simply enforcement of that decision. The Applicants therefore had no good reason for extension of time.

p. 3

Legal principles established

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  • Extension of time to file an appeal is an equitable remedy available only to a deserving party at the discretion of the court, not a right.
  • A litigant cannot blame his advocate for ignorance of a judgment; a party who instructs an advocate must remain vigilant.

Court orders

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  1. 1.The Application dated 1st September 2014 is dismissed with costs

Authorities

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Legislation

  • Land Adjudication ActSection 29(1)

Cases cited (1)

  • Nicholas Kiptoo Arap Korir Salat Vs IEBC & 7 others
    Supreme Court Application Number 16 of 2014
On appeal from
Senior Resident Magistrate's Court, Kilifi
Kilifi SRMCC No. 188 of 2008
Jurisdiction invoked
Inherent discretion to extend time for filing an appeal (extension of time application)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Samson Chirume & 3 others v Joseph Sulubu [2015] KEELC 609 (KLR)", Case Analysis (2015). Application dated 1st September 2014 (arising from Kilifi SRMCC No. 188 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/609/eng@2015-03-20

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