Edwin Kipchumba Asis v Elizabeth Leting & another [2021] KEELC 34 (KLR)
The bottom line
#A Kenyan court revived a land appeal filed 4½ years late, ruling that a widow's need to stabilise her family after her husband's death justified the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the 4½-year delay in applying to revive the abated appeal was inordinate
The delay was reasonable and not inordinate in the circumstances, following Joseph Kirui v Said K. Keitany
Though the court would ordinarily accept 4½ years as inordinate, it was guided by the Court of Appeal decision in Joseph Kirui v Said K. Keitany, where Article 159 of the Constitution was applied to revive an appeal filed 6½ years after death, to allow substantive justice and the applicant her day in court.
Whether the reasons for delay were sufficient
Yes; a widow needs time to return to normality after the death of the breadwinner
The applicant deponed she had to choose between the welfare of her children and pursuing the appeal. The court found this a reasonable explanation, accepting that a widow needs time to put her affairs in order after the demise of the breadwinner.
Whether the appeal had chances of success
Yes; the withdrawal of the vendor's objections does not bar the applicant from filing her own objection proceedings as purchaser
The respondent argued the appeal depended on withdrawn objection proceedings. The court held the applicant, as administrix of the deceased purchaser, could file independent objection proceedings, so withdrawal did not affect the appeal's chances of success.
Whether the respondent would suffer prejudice
Any prejudice is compensable by an award of costs
The respondent alleged psychological, emotional and financial constraints. The court noted the applicant made no submissions on this limb but held that Order 50 Rule 6 ordinarily awards costs in such applications, and costs would compensate any prejudice suffered.
Legal principles established
#- Article 159 of the Constitution may be invoked to revive an abated appeal filed long after death where substantive justice so requires
- Withdrawal of objection proceedings by the vendor does not extinguish a purchaser's independent right to file objection proceedings
Court orders
#- 1.Leave granted to the Applicant to be substituted in the Appeal in place of the deceased Appellant
- 2.The order of 29.01.2019 marking the Appeal as abated set aside
- 3.The appeal reinstated and revived
- 4.Respondent to have the costs of the application
- Jurisdiction invoked
- Order 24 Rule 3(2) proviso, Order 50 Rule 6 and Section 95 of the Civil Procedure Act, Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edwin Kipchumba Asis v Elizabeth Leting & another [2021] KEELC 34 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/34/eng@2021-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.