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ELCDismissedNot stated in the extract· [2019] KEELC 3413 (KLR)

Anna Indonde Imboba v Vincent Shingwana Injede [2019] KEELC 3413 (KLR)

Environment and Land Court
8 May 2019
921 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 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

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Executive summary

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The defendant/applicant filed a notice of motion dated 3rd September 2018 under Sections 3 and 3A of the Civil Procedure Act seeking leave to withdraw the services of M/s. M. Kiveu & Co. Advocates, leave to appeal to the Court of Appeal and to file a Notice of Appeal out of time against the ruling of 27th September 2017, and a stay of execution of the judgment delivered on 17th March 2015. He blamed his former advocates for failing to communicate the hearing date, claimed the Environment and Land Court's suspension following a decision at Malindi prevented prosecution of his application dated 20th May 2015, and asserted he only learnt of the dismissal when evicted from the suit land on 16th July 2018. The plaintiff/respondent opposed, pointing out that the applicant had been served with and opposed her 16th June 2017 application by filing a replying affidavit on 27th July 2017, and that the ruling of 27th September 2017 was delivered in the presence of his advocates on record. Prayer 1 was granted by consent. The court, per N.A. Matheka J, found the application, filed on 3rd October 2018, was tainted by inordinate delay and was an afterthought; the explanation that the court was not sitting was untrue since the court had sat in Kakamega since February 2017. Applying Utalii Transport v NIC Bank and Ivita v Kyumbu, the court held the applicant indolent and dismissed the application with costs.

Key legal issues

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01

Whether the applicant's delay in moving the court was excusable

Holding

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

Reasoning

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.

p. 2
02

Whether the balance of justice favoured granting leave and stay

Holding

Justice must be for both parties; the delay being prolonged and inexcusable, the indulgences sought could not be granted

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Prayer 1 granted by consent - leave to withdraw the services of M/s. M. Kiveu & Co. Advocates
  2. 2.The application otherwise dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 3 and 3A

Cases cited (2)

  • Utalii Transport Company Ltd & 3 Others vs NIC Bank & Another
    (2014) eKLR
  • Ivita v Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Section 3 and 3A of the Civil Procedure Act (inherent power of the court)

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, "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.