Willy Kipkoech Kirui (appealing as the legal representative of John K. arap Rotich (Deceased) v Peter Kiplangat Rono & 2 others [2018] KEELC 3674 (KLR)
The bottom line
#A Kericho court let a late appeal proceed against a 2014 land judgment, but refused to stop the auctioned land's transfer or to involve new parties.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the applicant
The applicant, holding a limited grant as legal representative of the deceased, had capacity to bring the application.
The applicant obtained a limited grant in Kericho HC Succession Cause No. 96 of 2015 on 30th November 2015. Although the respondent argued the grant was limited to defending ELC Civil Case No. 52 of 2013, the court held the grant was for purposes of filing a suit and thus the objection to capacity failed.
Leave to appeal out of time
Leave granted; the explanation, particularly the deceased's mental incapacity and the delay between judgment and execution, justified extension.
Applying Aviation Cargo Support Ltd v St. Mark Freight Services Ltd and Sayers v Clarke Walker, the court weighed the explanation for delay, promptness and effect on parties. The deceased's mental incapacity and the circumstances of execution satisfied the court that a plausible explanation existed, warranting the exercise of discretion in the applicant's favour.
Injunctive relief
Refused; not established on the principles in Giella v Cassman Brown and time-lapse weighed against it.
Counsel made no submissions for or against the injunction prayer, so the court could not ascertain whether the Giella v Cassman Brown principles were met. Additionally, the lapse of time since the judgment of 28th May 2014 and subsequent auction weighed against granting injunctive relief.
Orders against all proposed respondents
Leave restricted to the party to the lower court suit; joinder of others at appellate stage is irregular.
The court reasoned that an appeal lies only against a person who was a party to the case from which it arises. Enjoining the 2nd and 3rd proposed respondents, who were not parties to CMCC No. 106 of 2014, at the appellate stage would be irregular, and the orders were therefore confined accordingly.
Legal principles established
#- The power to grant extension of time against a final decision must be exercised judicially, considering the explanation for delay and all attendant circumstances.
- A limited grant confers sufficient capacity on a legal representative to bring an application of this nature.
Court orders
#- 1.Wily Kiprotich Kirui, the legal representative of the late John K Arap Rotich, the defendant in CMCC No. 106 of 2014, to be made a party to the proposed appeal
- 2.Leave granted to the proposed appellant to appeal out of time against the whole of the judgment and consequential orders in CMCC No. 106 of 2014
- 3.The Memorandum of Appeal annexed to the application deemed as duly filed and served upon payment of the requisite court fees
- 4.Costs of the application to be in the appeal
- On appeal from
- Kericho Chief Magistrate's Court
- CMCC No. 106 of 2014
- Jurisdiction invoked
- Inherent discretion to grant leave to appeal out of time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Willy Kipkoech Kirui (appealing as the legal representative of John K. arap Rotich (Deceased) v Peter Kiplangat Rono & 2 others [2018] KEELC 3674 (KLR)", Case Analysis (2018). Application dated 9th June 2016 (arising from Kericho CMCC No. 106 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3674/eng@2018-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.