Republic v Commissioner Of Lands & another Ex- Parte Edward Lenjo Musamuli & 6 others [2016] KEELC 592 (KLR)
The bottom line
#Kenya's High Court dismissed a bid for more time to challenge taxed legal costs, holding the same issue had already been decided and blaming unexplained advocate delay.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The present application for enlargement of time is res judicata the earlier application dated 22nd October 2012 in which leave to file a reference out of time was granted on 11th February 2015
The court found no substantive difference between seeking leave to file a reference out of time and seeking enlargement of time to file the same reference; the subject matter was already determined in the earlier application, which was allowed on 11th February 2015. The only new element was counsel's assertion that his mistake caused the delay.
Delay and the mistake of counsel
Counsel's failure to attend court on 11th February 2015 or follow up on the application thereafter was unexplained delay that could not be visited on the interested party
The court found counsel's claim of having requested time to highlight submissions misleading, as the date for highlighting had been fixed and counsel failed to attend on 9th December 2014. No reasonable explanation was given for failing to follow up the ruling; a blanket plea that a litigant should not suffer for counsel's mistake does not avail where the mistake lacks justification.
Article 159 and procedural technicalities
Article 159 of the Constitution does not assist the applicants as there was no undue regard to procedural technicalities; the opportunity to appeal had lapsed
The court held that justice had not been delayed since the applicants had been given an opportunity to appeal/reference which they allowed to lapse. Order 42 rule 6 was inapplicable as no stay of execution was sought, and section 59 of Cap 2 and Order 50 had been dealt with in the earlier application.
Legal principles established
#- An application for leave to file a reference out of time and a later application for enlargement of time to file the same reference are the same in substance; the second is res judicata the first
Court orders
#- 1.The application dated 22nd July 2015 is dismissed for lacking in merit and as being res judicata
- 2.Costs of the motion awarded to the interested party
- Jurisdiction invoked
- Section 59 of the Interpretation and General Provisions Act; Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Commissioner Of Lands & another Ex- Parte Edward Lenjo Musamuli & 6 others [2016] KEELC 592 (KLR)", Case Analysis (2016). Judicial Review Application (Notice of Motion dated 22nd July, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/592/eng@2016-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.