Samwel Ambasa & 3 others v Stela Ingasia [2019] KEELC 1319 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant's inordinate delay of about 2½ months in filing the application for extension of time was excusable
The delay was excusable because it was attributed to counsel's mistake, which should not be visited on the client
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.
Whether stay of execution of the subordinate court's decree pending the intended appeal should be granted
Stay of execution was granted, the court being empowered to preserve the subject matter of the intended appeal (LR No. Bukira/Buhiri Monono/816)
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.
Legal principles established
#- 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
#- 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.Stay of execution of the judgment and decree in Kehancha PMCC No. 12 of 2015 pending the hearing and determination of the appeal
- 3.The applicant shall file and serve an appeal out of time within 30 days from the date of the ruling
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.