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ELCAllowedNotice of motion dated 18th January, 2016 (revival of abated appeal)· [2016] KEELC 352 (KLR)

Kabui Njebere v Peter Maina Muriuki & 2 others [2016] KEELC 352 (KLR)

Environment and Land Court
17 October 2016
LWL N Waithaka
1,775 words in judgment
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The bottom line

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Kenya's Environment and Land Court revived an appeal abated for 10 years, ruling that a lawyer's misadvice explains the delay and land disputes deserve a hearing on the merits.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 18th January 2016 brought by Stephen Kariuki Kabui under Order 24 Rules 7(2) and 9 of the Civil Procedure Rules seeking revival of an appeal that abated by operation of law on 30th July 2007, following the death of the appellant, Kabui Njebere, on 30th June 2006. The abatement was declared on 4th March 2008 on the respondents' application. The applicant blamed his advocates' failure to advise the estate on the need for substitution, said the appeal had high chances of success and that the estate should not be condemned unheard. The respondent, Peter Maina Muriuki, opposed, citing inordinate delay of close to nine to ten years, the applicant's indolence, the lack of demonstrated prospects of success, and prejudice from being kept from the fruits of a decree issued by the Karatina Resident Magistrates Court for over 16 years, and suggested the applicant could pursue his grievance in pending succession proceedings. The applicant relied principally on Issa Masudi Mwabumba v. Alice Kavenya Mutunga, Rosemary Bunny v. Gichuru Kamotho and Peterson Gichohi v. Maina Johana Miano, stressing that the subject matter is family land and raising jurisdictional doubts about the defunct Land Disputes Tribunals. Waithaka J framed a single issue: whether the applicant had made a case for revival. Applying the Peterson Gichohi reasoning, the court held that although the delay of about 10 years was inordinate, it was adequately explained by counsel's misadvice, and that the arguable issues should be heard on their merits in the interest of justice. The application was allowed in terms of prayer (ii), with costs of the application to abide the outcome of the appeal.

Key legal issues

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Whether the delay of approximately 10 years in applying to revive the abated appeal was excusable

Holding

The delay, though inordinate, was adequately explained: the estate was misadvised by its advocates and laboured under the impression the dispute would be resolved in succession proceedings. In the interest of justice, the arguable issues should be heard on the merits.

Reasoning

The court applied the principles in Issa Masudi Mwabumba and Peterson Gichohi: mistakes of counsel are not attributed to the litigant; the subject matter is family land; the appeal raises arguable jurisdictional issues concerning the defunct Land Disputes Tribunals; and a durable resolution on the merits is preferable, with prejudice compensable by costs.

p. 4

Legal principles established

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  • An advocate's failure or mistake that causes inordinate delay in reviving an abated appeal cannot be attributed to the party, and where the issues raised are arguable and the dispute concerns land, the interest of justice favours determination on the merits.

Court orders

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  1. 1.The abated appeal is revived in terms of prayer (ii) of the notice of motion dated 18th January, 2016
  2. 2.The costs of the application shall abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 7(2), 9
  • Civil Procedure Rules, 2010Order 24 Rules 3(2), 7(2)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of Kenya, 2010Article 159
  • Land Disputes Tribunals Act, No. 18 of 1990 (repealed)

Cases cited (6)

  • Issa Masudi Mwabumba v. Alice Kavenya Mutunga & 4 others
    (2012) eKLR
  • Rosemary Bunny v. Gichuru Kamotho
    (2005) eKLR
  • Peterson Gichohi v. Maina Johana Miano alias Joseph Miana Miano
    Nyeri ELC No. 14 of 2015
  • Leo Sila Mutiso vs. Rose
    CA NAI 255 of 1997 (unreported)
  • Trust Bank Limited v. Amalo Company Ltd
    C.A Civil Appeal No. 215 of 2000 (Kisumu) (unreported)
  • Essanji & Anor –vs- Solanki
    (1968) E.A. 224
Jurisdiction invoked
Order 24 Rule 7(2) and 9 of the Civil Procedure Rules; Section 3A and 3B of the Appellate Jurisdiction Act (oxygen principle); Article 159 of the Constitution

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, "Kabui Njebere v Peter Maina Muriuki & 2 others [2016] KEELC 352 (KLR)", Case Analysis (2016). Notice of motion dated 18th January, 2016 (revival of abated appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/352/eng@2016-10-17

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