Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (application dated 16th June 2021 in the suit arising from a plaint dated 26th April 2014)· [2021] KEELC 101 (KLR)

Alfred Wanjala Ekidapa (Deceased) v Patrick Sitati Walukhuchi & 3 others [2021] KEELC 101 (KLR)

Environment and Land Court (Court of the Senior Resident Magistrate context; ruling delivered at Bungoma)
30 November 2021
BOBOAZ N. OLAO
2,875 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a request to revive an abated lawsuit because the applicant gave no explanation for a ten-month delay after obtaining a grant.

What this practically means

#

Executive summary

#
This ruling determines a Notice of Motion dated 16th June 2021 by Agnes Okwakau Wanjala seeking extension of time to apply for joinder of the legal representatives of the deceased plaintiff, Alfred Wanjala Ekidapa, her substitution as plaintiff, and revival of a suit that had abated. Judgment had been entered in the plaintiff's favour on 11th May 2016, execution was pending, and the defendants had filed a pending interlocutory appeal in the Court of Appeal (Civil Appeal No 106 of 2016, Kisumu). The plaintiff died on 27th February 2019; the Applicant learned of the suit in October 2020, obtained a Limited Grant ad litem on 12th August 2020 after difficulties with the local Chief, but filed the application only on 1st June 2021. The Respondents opposed, arguing the suit had abated, that the Applicant and her counsel were indolent, and that the application was an abuse of process. Applying Order 24 of the Civil Procedure Rules, the court held that the Applicant's explanation for the delay in obtaining the grant could be excused, but no explanation at all was offered for the ten-month delay between the grant and the application. The claim of counsel's mistake was raised only in submissions, unsupported by affidavit. The court held that the discretion to extend time exists only on good reason or sufficient cause, is not at large, and must be fed by evidence. Finding no good reason, the court declined to exercise its discretion and dismissed the application with costs on 30th November 2021.

Key legal issues

#
01

Whether good reason was shown to extend time under Order 24 Rule 3(2) after the suit abated

Holding

No; the court accepted the explanation for the delay in obtaining the grant but found no explanation at all for the ten-month delay in filing the application after the grant

Reasoning

The suit abated on 28th February 2020, one year after the plaintiff's death. The court excused the delay in obtaining the Limited Grant, attributing it partly to the Chief and the court registry. However, between 12th August 2020 (grant) and 1st June 2021 (application) the Applicant maintained a 'studious silence'. Sufficient cause must be rational, plausible and leave no unexplained gaps; an omnibus application fails where the foundational prayer for extension fails.

p. 3
02

Whether the Applicant could rely on counsel's mistake to excuse the delay

Holding

No; the claim that delay was occasioned by counsel was raised only in submissions without any affidavit by counsel or the Applicant owning up to the error

Reasoning

While the law accepts that a litigant should not be penalized for counsel's mistakes, that principle must be established by evidence. No affidavit from counsel admitting error was filed, and the Applicant's supporting affidavit said nothing about the ten-month period. The court could not act on submissions alone.

p. 3

Legal principles established

#
  • Submissions are not evidence on which a court can base a decision; matters such as counsel's mistake must be supported by affidavit evidence
  • The discretion to extend time under Order 24 Rule 3(2) exists only on good reason or sufficient cause and is not granted as a matter of course
  • The onus is on the party seeking the exercise of the court's discretion to place sufficient material before the court; without evidence discretion cannot be exercised

Court orders

#
  1. 1.The Notice of Motion dated 16th June 2021 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 24 Rules 3(1), 3(2), 7(1), 7(2)
  • Civil Procedure ActSections 1A and 1B
  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of Kenya 2010Article 159

Cases cited (9)

  • PHILIP ONGOM .V. CATHERINE OWOTA
    SCCA 14/2001 [2003] KALR
  • BELINDA MURAI & OTHERS .V. AMOS WAINAINA
    1979 eKLR
  • DANIEL TOROITICH arap MOI .V. MWANGI STEPHEN MURIITHI & ANOTHER
    2014 eKLR
  • ERASTUS WADE OPANDE .V. KENYA REVENUE AUTHORITY & ANOTHER
    KISUMU H.C.C.A No 46 of 2007
  • JAMES KINUTHIA .V. HEMED MUKUI
    2019 eKLR
  • ISSA MWABUMBA .V. ALICE KAVENYA MUTUNGA & OTHERS
    2012 eKLR
  • MATHENGE NGATIA NGARI .V. CHRISTOPHER WANGOMBE NGATIA & ANOTHER
    2020 eKLR
  • THE HON – ATTORNEY GENERAL .V. THE LAW SOCIETY OF KENYA & ANOTHER
    C.A CIVIL APPEAL No 133 of 2011
  • REBECCA MIJIDE MUNGOLE & ANOTHER .V. KENYA POWER & LIGHTING COMPANY LTD
    2017 eKLR
Jurisdiction invoked
Order 24 Rule 3(2) of the Civil Procedure Rules - court's power for good reason to extend time and revive an abated suit

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Alfred Wanjala Ekidapa (Deceased) v Patrick Sitati Walukhuchi & 3 others [2021] KEELC 101 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 16th June 2021 in the suit arising from a plaint dated 26th April 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/101/eng@2021-11-30

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