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ELCDismissedIten SRMCC LDT No. 5 of 2006 (application for stay of execution and extension of time)· [2017] KEELC 893 (KLR)

Murkomen Yano & another (Kakibigen Clan) v Gabriel Kilimo & another (Kartur Clan) [2017] KEELC 893 (KLR)

High Court of Kenya (sitting at Eldoret)
6 October 2017
AOA. Ombwayo
515 words in judgment
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The bottom line

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The High Court refused to excuse a six-year delay in appealing a land award, so the winners can now enforce the judgment against the applicants.

What this practically means

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Executive summary

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This was an application by Murkomen Yano, Kiprotich Kipkore (Kakibigen clan), Gabriel Kilimo and Kanda Chesang (Kartur clan) seeking a temporary stay of execution of the Elders' Award adopted as judgment in Iten SRMCC LDT No. 5 of 2006, and leave to appeal out of time. The applicants argued that they had a meritorious appeal, that the delay was not deliberate, that their former advocates, Ngala & Company, never informed them when they ceased acting, and that a mistake of counsel should not be visited on parties. The respondents conceded that the advocates withdrew but argued that the advocates' failure could not be visited upon them and that the orders were lawfully issued. The court found that the Marakwet Land Disputes Tribunal made its award on 21.7.2005, which was adopted as a judgment of the court on 12.11.2008 in the presence of the claimants and their counsel, the land being awarded to Kartur clan. Dissatisfied parties had 30 days to appeal to the High Court. The court examined Ngala & Company's application to cease acting dated 9.3.2010 and found the advocates were frustrated by the applicants' failure to give instructions, attend court or pay fees; blaming the lawyers was a lame excuse. Applying the settled discretionary principles of length of delay, reason for delay, chances of success and degree of prejudice, the court held the six-year delay inordinate and inexcusable, and since there was no appeal, the stay pending appeal was untenable. The application was dismissed with costs on 6 October 2017.

Key legal issues

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01

Whether the delay of approximately six years in appealing the adopted Tribunal award was excusable

Holding

The delay was inordinate and inexcusable; blaming counsel was a lame excuse

Reasoning

The Tribunal award was adopted as judgment on 12.11.2008 and the applicants did not appeal within the 30 days allowed to the High Court. Their sole explanation was that their advocates, Ngala & Company, failed to inform them of cessation of representation. The court found the advocates withdrew because the applicants failed to give instructions, attend court or pay fees, making the excuse lame.

p. 2
02

Whether stay of execution pending appeal could issue where no appeal exists

Holding

Stay pending appeal is untenable where no appeal has been filed

Reasoning

Because the applicants failed to file an appeal within time and extension of time was refused, there was no pending appeal to support a stay. The court therefore declined the stay and dismissed the application with costs.

p. 3

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary, guided by the length of delay, reason for delay, chances of success of the appeal and degree of prejudice to the other party

Court orders

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  1. 1.The application for extension of time to appeal and for stay of execution pending appeal is dismissed
  2. 2.Applicants to pay costs of the application
On appeal from
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null
Jurisdiction invoked
Inherent discretion to extend time for appealing and grant stay of execution pending appeal

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, "Murkomen Yano & another (Kakibigen Clan) v Gabriel Kilimo & another (Kartur Clan) [2017] KEELC 893 (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/2017/893/eng@2017-10-06

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