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ELCDismissedEldoret Hccc Misc. Application No. 140 of 2003· [2020] KEELC 960 (KLR)

Republic v Chairman Kapsaret Land Disputes Tribunal & 5 others Ex-Parte Joseph Kiruiyot Sitienei & 4 others [2020] KEELC 960 (KLR)

Environment and Land Court of Kenya
21 October 2020
2,677 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to revive a land case filed sixteen years late, confirming you cannot blame your lawyer for choices you instructed.

What this practically means

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Executive summary

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The Exparte Applicants moved the Court by Notice of Motion dated 1st April 2019 seeking a seven-day extension (or such period as the Court might direct) of the 21 days allowed under Order 50 Rule 3 of the Civil Procedure Rules for filing the substantive motion for certiorari to quash the Kapseret Land Disputes Tribunal award adopted in Eldoret CMCC No. 8 of 2003. Leave had been granted on 16th September 2003, but no substantive motion was ever filed; instead, their advocate filed a plaint in Eldoret HCCC No. 31 of 2004 (later ELC No. 141'A' of 2012), which was dismissed as res judicata by judgment of 31st January 2019. The 1st Respondent opposed through grounds of opposition, contending the motion was incompetent, statute-barred, res judicata, and prejudicial since the Land Disputes Tribunal Act had been repealed. The court framed three issues: whether a reasonable case for extension was made, whether extension would cause un-compensatable prejudice, and costs. The court held that the filing of the plaint was pursuant to the Applicants' own instructions to sue, not an inadvertent advocate's error; that they had abandoned the judicial review route in 2003; that over fifteen years of delay were unexplained; that the Respondents would suffer prejudice costs could not remedy given the repeal of the Tribunal Act and the crystallization of their rights; and that section 7 of the Civil Procedure Act barred the matter as res judicata. The motion was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Whether the Exparte Applicants made out a reasonable case for extension of time

Holding

They did not; over fifteen years elapsed with no explanation, and the delay was attributable to their own instructions to file a plaint rather than counsel's error.

Reasoning

Leave was granted on 16th September 2003 and the 21 days lapsed on or about 7th October 2003. The plaint in Eldoret ELC No. 141'A' of 2012 was filed in March 2004 pursuant to the Applicants' own instructions to sue the Defendants, so the claimed advocate's error lacked basis. The application itself was only filed on 1st April 2019. No explanation was tendered for either the initial or the fifteen-year delay.

p. 3
02

Whether extension would cause prejudice not compensable by costs

Holding

Yes; the Land Disputes Tribunal Act under which the award was made had been repealed, and the Respondents' position, including execution of the award, had been crystallized for over fifteen years.

Reasoning

The Respondents had the tribunal award adopted by the lower court and executed through subdivision and transfer of the suit properties before March 2004. The Land Disputes Tribunal Act No. 18 of 1990 was repealed under Section 31 of the Environment and Land Court Act No. 19 of 2011. Re-opening the judicial review process would be prejudicial to their defence in a way costs cannot remedy.

p. 3
03

Whether res judicata and functus officio render any extension futile

Holding

Yes; the same subject matter between the same parties was conclusively determined in Eldoret ELC No. 141'A' of 2012, which was dismissed on merit.

Reasoning

The Applicants were the plaintiffs and the Respondents the defendants in Eldoret ELC No. 141'A' of 2012, whose subject matter was principally the same. The suit was heard and determined on merit and dismissed by a court of competent jurisdiction. Section 7 of the Civil Procedure Act estops courts from entertaining matters between the same parties over the same subject already determined.

p. 3
04

Who should bear the costs of the application

Holding

The Exparte Applicants, having unsuccessfully prosecuted the motion against the participating 1st Respondent.

Reasoning

The 1st Respondent participated in defending and hearing the application and succeeded; costs follow the event. The court accordingly dismissed the motion with costs to the 1st Respondent.

p. 3

Legal principles established

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  • Litigants cannot blame counsel for a mistake where the filing was made pursuant to their own instructions; the mistake-of-counsel rule applies only to genuine mistakes strictly within counsel's professional competence.
  • A court determining an extension of time application considers the reasonableness of the delay, whether un-compensatable prejudice would be caused, and whether the application was brought without undue delay.
  • A party who abandons judicial review proceedings in favour of an ordinary suit cannot later seek to restart the judicial review process after the suit is dismissed.

Court orders

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  1. 1.The Motion dated and filed on 1st April 2019 seeking extension of time is dismissed with costs to the 1st Respondent.
Jurisdiction invoked
Judicial review jurisdiction of the High Court/ELC under the Civil Procedure Rules (Order 50 Rule 3 and Order 50 Rule 6) and sections 1A, 1B and 3A of the Civil Procedure Act; Articles 23, 47, 50 and 159(2)(b) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Chairman Kapsaret Land Disputes Tribunal & 5 others Ex-Parte Joseph Kiruiyot Sitienei & 4 others [2020] KEELC 960 (KLR)", Case Analysis (2020). Eldoret Hccc Misc. Application No. 140 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/960/eng@2020-10-21

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