Clement Chemonges v John Masai & another [2019] KEELC 3553 (KLR)
The bottom line
#Kenya's Environment and Land Court gave a landowner a second chance to appeal after his lawyer's mistake, and paused his eviction meanwhile.
What this practically means
#Executive summary
#Key legal issues
#Competence of the incoming advocate on record
The objection failed; the consent between outgoing and incoming advocates satisfied Order 9 of the Civil Procedure Rules.
Order 9 provides that a change of advocate after judgment requires a court order or a consent between outgoing and incoming advocates. A consent executed on 1/3/2019 by Tigogo & Co. and Kiboi Tuwai & Co. Advocates was filed on 4/3/2019. The court held this sufficient and found Kiboi Tuwai & Co. Advocates properly on record.
Whether the delay in seeking extension of time was excused
The delay was sufficiently explained by the applicant's illness and his erstwhile advocate's failure to inform him of the order of 25/7/2018.
The applicant blamed his former advocates for not informing him of the compliance order and deponed that illness since 2016 broke down communication. Applying Philip Chemwolo, the court considered the whole context, including that the suit was dismissed without a hearing on the merits and that obstacles to hearing, including the death of Ndiwa Naibei, were not of the applicant's making.
Stay of execution and extension of time
Stay and extension of time were granted; the applicant would suffer substantial loss as he depends on the suit land for subsistence farming.
The court found the applicant had occupied the land for a lengthy period and relied on it for subsistence farming, so eviction would affect others besides him. Noting the suit was never heard on its merits, the court found it necessary to preserve the suit property and granted extension of time, the requirements of the Appellate Jurisdiction Act having been sufficiently explained.
Legal principles established
#- A consent filed between the outgoing and incoming advocates is sufficient to place the incoming advocate on record after judgment.
- A mistake of counsel not communicated to the litigant should not defeat the litigant's right of appeal.
- The right to appeal against an order of dismissal is protected by law and extension of time may be granted where the default is sufficiently explained.
Court orders
#- 1.Temporary stay of execution of the judgment/decree/orders of 24th September 2018 pending hearing and determination of the intended appeal (prayer 3 granted)
- 2.Leave granted to the plaintiff/applicant to file a Notice of Appeal out of time against the judgment and orders of 24th September 2018 (prayer 4 granted)
- 3.The period for filing and serving the Notice of Appeal extended by 14 days from the date of the order
- 4.Costs of the application to abide the appeal decision
- Jurisdiction invoked
- Sections 1A, 1B, 63(e) and 79G of the Civil Procedure Act; Order 50 Rule 1 of the Civil Procedure Rules; Sections 3, 3A, 3B and 7 of the Appellate Jurisdiction Act Cap 9; Article 159 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clement Chemonges v John Masai & another [2019] KEELC 3553 (KLR)", Case Analysis (2019). Application dated 12/3/2019 (suit over Plot No. 42 Cheptenden Settlement Scheme). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3553/eng@2019-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.