Murkomen Yano Kiprotich Kipkore Clan (Kakibigen) v Gabriel Kilimo Kanda Chesang (Kartur Clan) [2017] KEELC 148 (KLR)
The bottom line
#A Kenyan court refused to revive a six-year-old land case, ruling that blaming your lawyer for missing appeal deadlines is no excuse.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to appeal and stay pending appeal
The application was dismissed: the six-year delay was inexcusable and, there being no appeal, stay of execution pending appeal was untenable.
The Tribunal award was adopted as judgment on 12.11.2008 and an appeal lay to the High Court within 30 days. The applicants did not appeal, blaming their former advocates. The court found the advocates withdrew because the applicants failed to give instructions, attend court or pay fees. Blaming one's lawyers was a lame excuse; no proper explanation for the delay existed, so both prayers failed.
Withdrawal of the applicants' advocates and attribution of fault
Ngala & Company Advocates withdrew because the applicants' own conduct frustrated them; the fault was the applicants', not the respondents'.
The court examined the advocates' application to cease acting dated 9.3.2010 and found the applicants failed to provide adequate instructions, failed to attend court or contact their advocates when required, and failed to pay legal fees. The respondents argued that the advocates' failure to act could not be visited upon them, and the court accepted that position in substance.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, and courts consider the length of delay, reason for delay, chances of success and degree of prejudice.
- A party cannot rely on the conduct of its own advocates as an excuse for failure to appeal where the advocates withdrew because of the party's own default.
Court orders
#- 1.The application for extension of time to appeal and for stay of execution pending appeal is dismissed
- 2.Costs to the respondents
- On appeal from
- Iten Senior Resident Magistrate's Court (adopting the Marakwet Land Disputes Tribunal award)
- Iten SRMCC LDT No. 5 of 2006
- Jurisdiction invoked
- Inherent/appellate jurisdiction to extend time for appeal and stay execution pending appeal (no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murkomen Yano Kiprotich Kipkore Clan (Kakibigen) v Gabriel Kilimo Kanda Chesang (Kartur Clan) [2017] KEELC 148 (KLR)", Case Analysis (2017). Iten SRMCC LDT No. 5 of 2006 (application for stay of execution and extension of time). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/148/eng@2017-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.