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ELCPartially AllowedApplication dated 9th June 2016 (arising from Kericho CMCC No. 106 of 2014)· [2018] KEELC 3674 (KLR)

Willy Kipkoech Kirui (appealing as the legal representative of John K. arap Rotich (Deceased) v Peter Kiplangat Rono & 2 others [2018] KEELC 3674 (KLR)

Environment and Land Court
18 April 2018
1,653 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kericho by J. M Onyango, J, determined an application dated 9th June 2016 in which the applicant, son and legal representative of the estate of John K. Arap Koech/Rotich (deceased), sought leave to appeal out of time against an ex parte judgment of 28th May 2014 in Kericho CMCC No. 106 of 2014, in which the 1st Respondent recovered Kshs. 1,421,595 against the deceased, and an injunction restraining alienation of land parcel KERICHO/KIPCHIMCHIM/2192, which had been sold at public auction to the 3rd proposed Respondent in execution of the decree. The deceased, who had suffered a stroke in 2005 impairing his mental faculties, never entered appearance; a prior attempt to set aside the judgment failed when the deceased's son's affidavit was struck out as sworn by a stranger. The deceased died on 12th June 2015. The court framed four issues: locus standi, leave to appeal out of time, injunctive relief, and orders against all proposed respondents. It held the applicant's limited grant conferred capacity, applied Aviation Cargo Support Ltd v St. Mark Freight Services Ltd and Sayers v Clarke Walker, and found the deceased's mental incapacity and attendant circumstances a good explanation for the delay. Injunction was refused for want of submissions and lapse of time; orders against non-parties were declined as irregular at the appellate stage. The court granted leave to appeal out of time, deemed the memorandum of appeal filed on payment of fees, directed joinder of the legal representative, and ordered costs of the application to be in the appeal.

Key legal issues

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01

Locus standi of the applicant

Holding

The applicant, holding a limited grant as legal representative of the deceased, had capacity to bring the application.

Reasoning

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.

p. 2
02

Leave to appeal out of time

Holding

Leave granted; the explanation, particularly the deceased's mental incapacity and the delay between judgment and execution, justified extension.

Reasoning

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.

p. 3
03

Injunctive relief

Holding

Refused; not established on the principles in Giella v Cassman Brown and time-lapse weighed against it.

Reasoning

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.

p. 3
04

Orders against all proposed respondents

Holding

Leave restricted to the party to the lower court suit; joinder of others at appellate stage is irregular.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 3.The Memorandum of Appeal annexed to the application deemed as duly filed and served upon payment of the requisite court fees
  4. 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

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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, "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.