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ELCPartially AllowedNotice of Motion dated 12th March 2019 (arising from Kehancha PMCC No. 12 of 2015)· [2019] KEELC 1319 (KLR)

Samwel Ambasa & 3 others v Stela Ingasia [2019] KEELC 1319 (KLR)

Environment and Land Court
26 September 2019
1,423 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court let a family appeal late because their lawyer's mistake caused the delay, and blocked the winner from enforcing the judgment meanwhile.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Migori (G.M.A. Ongondo, J) delivered on 26th September 2019 on a Notice of Motion dated 12th March 2019 brought by Samuel Ambasa and three others, applicants in a land dispute. The applicants sought enlargement of time to file an appeal out of time against the judgment and decree of the subordinate court in Kehancha PMCC No. 12 of 2015 (Stella Ingasia v Samwel Ambasa & 3 others) delivered on 20th December 2018, together with a stay of execution pending the intended appeal. The application was anchored on Articles 40, 48 and 59(2) of the Constitution and sections 79G and related provisions of the Civil Procedure Act, with Order 42 rule 6 of the Civil Procedure Rules. The applicant, appearing in person, attributed the delay in filing an appeal to his former advocate on record, Mr. Kanyangi, from whom he only learned on 7th February 2019 that no appeal had been filed. The respondent, represented by Mr. Thomas Muniko, opposed the application as misleading, brought in bad faith and designed to deny her the fruits of her judgment, contending that no sufficient reason for stay or extension had been shown and that the draft memorandum of appeal raised no triable issues. After considering written submissions, the court held that a mistake of counsel should not be visited upon a client, citing Shabir Din v Ram Parkash Anand and Hamam Singh v Mistri. Although it noted a delay of some 2½ months, it found the applicant's reasons sufficient. It further invoked the Supreme Court's authority to preserve the subject matter of an appeal (the land parcel LR No. Bukira/Buhiri Monono/816) and the parties' constitutional right to a fair hearing. The court allowed the application in full, granting extension of time and stay of execution, with no orders as to costs, and directed the applicant to file and serve the appeal within 30 days.

Key legal issues

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01

Whether the applicant's inordinate delay of about 2½ months in filing the application for extension of time was excusable

Holding

The delay was excusable because it was attributed to counsel's mistake, which should not be visited on the client

Reasoning

Judgment was delivered on 20th December 2018 and the application filed on 12th March 2019, a delay of 2½ months. The applicant admitted the delay but blamed his former counsel, Mr. Kanyangi, who failed to file the intended appeal. Relying on Shabir Din v Ram Parkash Anand and Hamam Singh v Mistri, the court held mistake of counsel amounts to sufficient cause and found the applicant's reasons sufficient.

p. 2
02

Whether stay of execution of the subordinate court's decree pending the intended appeal should be granted

Holding

Stay of execution was granted, the court being empowered to preserve the subject matter of the intended appeal (LR No. Bukira/Buhiri Monono/816)

Reasoning

The court took into account the imminent execution and that the subject matter of the intended appeal was land parcel LR No. Bukira/Buhiri Monono/816. Following Board of Governors Moi High School Kabarak v Malcolm Bell, it held it had authority to preserve the subject matter of an appeal in the interim, and weighing the constitutional right to a fair hearing, allowed prayer 4.

p. 2

Legal principles established

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  • A mistake of counsel should not be visited upon the client and may constitute sufficient cause for extension of time despite delay
  • Mistake of a legal advisor may amount to sufficient cause but not inordinate delay on a party
  • The court has authority to issue interim orders for preservation of the subject matter of an appeal
  • A party has an uncurtailed right to a fair hearing, including the right to be heard in applications

Court orders

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  1. 1.Time is enlarged to the appellants to appeal to the Environment and Land Court from the judgment and decree of the subordinate court in Kehancha PMCC No. 12 of 2015 delivered on 20th December 2018, and they are allowed to file the appeal out of time
  2. 2.Stay of execution of the judgment and decree in Kehancha PMCC No. 12 of 2015 pending the hearing and determination of the appeal
  3. 3.The applicant shall file and serve an appeal out of time within 30 days from the date of the ruling

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 48, 59(2), 25(c) and 50(1)
  • Civil Procedure ActSections 1, 1A, 3, 3A, 64(e), 66 and 79G
  • Civil Procedure Rules, 2010Order 42 rules 6(1), (2), (5) and 7; Order 50 rule 5; Order 51 rule 16
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33

Cases cited (5)

  • Shabir Din v Ram Parkash Anand
    (1955) EA CA volume 22 page 48
  • Hamam Singh and another v Mistri
    (1971) EA 122
  • Naomi Wangechi Gitonga and 3 others v IEBC and 17 others
  • Board of Governors Moi High School Kabarack and another v Malcolm Bell
    (2013) eKLR
  • Hebtulla Properties Ltd
    (1976-80) 1 KLR 1195 at 1204
On appeal from
Principal Magistrate's Court, Kehancha
Kehancha PMCC No. 12 of 2015 – Stella Ingasia v Samwel Ambasa, Charles Ambasa, Nebart Ambasa and Sella Ambasa
Jurisdiction invoked
Articles 40, 48 and 59(2) of the Constitution of Kenya, 2010; sections 1, 1A, 3, 3A, 64(e), 66 and 79G of the Civil Procedure Act; Order 42 rules 6(1),(2),(5) and 7 and Order 50 rule 5 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, "Samwel Ambasa & 3 others v Stela Ingasia [2019] KEELC 1319 (KLR)", Case Analysis (2019). Notice of Motion dated 12th March 2019 (arising from Kehancha PMCC No. 12 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1319/eng@2019-09-26

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