Anna Indonde Imboba v Vincent Shingwana Injede [2019] KEELC 3413 (KLR)
The bottom line
#A Kenyan court refused a defendant's late attempt to appeal and stay eviction, ruling his year-long unexplained delay showed indolence and the application was an afterthought.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant's delay in moving the court was excusable
The delay from the judgment of 17th March 2015 and ruling of 27th September 2017 to the application of 3rd October 2018 was inordinate and inexcusable, rendering the application an afterthought
The court perused the file and noted the judgment was delivered on 17th March 2015 and the ruling on 27th September 2017, yet the application was not filed until 3rd October 2018. The explanation that the Environment and Land Court had been suspended was rejected because the court had been sitting in Kakamega since February 2017. The applicant was also aware of the 16th June 2017 application, having filed a replying affidavit to it on 27th July 2017, undermining his claim of ignorance.
Whether the balance of justice favoured granting leave and stay
Justice must be for both parties; the delay being prolonged and inexcusable, the indulgences sought could not be granted
Applying Utalii Transport Company Ltd & 3 Others v NIC Bank & Another and Ivita v Kyumbu, the court held that whether a matter should proceed despite delay depends on the facts and on whether justice will be done despite the delay. Justice is justice for both plaintiff and defendant. The applicant's inordinate delay and unconvincing explanations meant the application had no merit.
Legal principles established
#- It is the primary duty of a party who initiates proceedings to take steps to progress the case, and reinstatement or indulgence depends on whether justice can be done despite the delay
- The test for excusing delay is whether the delay is prolonged and inexcusable and whether justice can still be done despite it, for both parties
Court orders
#- 1.Prayer 1 granted by consent - leave to withdraw the services of M/s. M. Kiveu & Co. Advocates
- 2.The application otherwise dismissed with costs
- Jurisdiction invoked
- Section 3 and 3A of the Civil Procedure Act (inherent power of the court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anna Indonde Imboba v Vincent Shingwana Injede [2019] KEELC 3413 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3413/eng@2019-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.