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ELCDismissedNot stated in judgment (application arising from suit over L.R. TIRIKI/GISAMBAI/645)· [2018] KEELC 4084 (KLR)

Joan Musuluve Muhindi v John Obamo Muhindi (Environment & Land Case 344 of 2014) [2018] KEELC 4084 (KLR)

High Court of Kenya
8 March 2018
NMN.A. Matheka
1,669 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a landowner's bid to delay eviction and appeal, finding his sworn explanation for missing appeal deadlines was false.

What this practically means

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Executive summary

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By a Notice of Motion dated 23rd November 2017 brought under Section 7 of the Appellate Jurisdiction Act, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules 2010, the defendant sought a stay of execution of the decree of 11th October 2017 - by which he was ordered to vacate L.R. TIRIKI/GISAMBAI/645 within six months, failing which eviction would issue - and extension of time to lodge a Notice of Appeal against that judgment. He claimed he had withdrawn instructions from his advocate, acted in person due to financial difficulties, and only learned through a newly engaged advocate that the time to file a Notice of Appeal had expired. The plaintiff opposed, asserting the application was an abuse of process, that the defendant had been violent, had alternative accommodation on TIRIKI/GISAMBAI/966, and that her title was indefeasible with no trust proved. Perusing the record, the court found the applicant had been represented by M/S Anyona & Company Advocates since November 2014, who appeared and conducted the defence hearing on 11th April and 21st September 2017. The applicant never filed a notice to act in person. His sworn claims were thus falsehoods, his delay inexcusable, and the application merely intended to frustrate the plaintiff from enjoying the fruits of her judgment. The application was dismissed with costs on 8th March 2018.

Key legal issues

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01

Whether the applicant's explanation for failing to lodge a Notice of Appeal within 14 days justified extension of time

Holding

The explanation was rejected as false; the applicant was always represented by counsel and never acted in person

Reasoning

The court perused the record and found that M/S Anyona & Company Advocates filed a notice of appointment in November 2014, appeared at the hearing on 11th April 2017 and conducted the defence hearing to its conclusion on 21st September 2017. The applicant's claim of financial difficulties, withdrawal of instructions and ignorance of the appeal timelines was therefore untrue, making the delay inexcusable and the application an abuse of process designed to frustrate the plaintiff from enjoying the fruits of her judgment.

p. 3

Legal principles established

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  • A party whose counsel was on record throughout cannot credibly claim ignorance of appeal timelines to justify extension of time, and false sworn statements constitute an abuse of court process

Court orders

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  1. 1.The application is dismissed
  2. 2.Costs to the plaintiff

Authorities

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Legislation

  • The Appellate Jurisdiction ActSection 7
  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure Rules 2010Order 42 Rule 6; Order 51 Rules 1 & 3
Jurisdiction invoked
Section 7 of The Appellate Jurisdiction Act; Sections 1A, 1B & 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rules 1 & 3 of the Civil Procedure Rules 2010

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, "Joan Musuluve Muhindi v John Obamo Muhindi (Environment & Land Case 344 of 2014) [2018] KEELC 4084 (KLR)", Case Analysis (2018). Not stated in judgment (application arising from suit over L.R. TIRIKI/GISAMBAI/645). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4084/eng@2018-03-08

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