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ELCDismissedJudicial Review Miscellaneous Application (Notice of Motion dated 19th April, 2021)· [2021] KEELC 429 (KLR)

Joseph Mungai Gichuru & another v National Land Commission & 2 others [2021] KEELC 429 (KLR)

High Court of Kenya
9 December 2021
1,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to extend time to appeal because the applicants never personally explained their delay—an affidavit from their lawyer wasn't enough.

What this practically means

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Executive summary

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By a Notice of Motion dated 19th April 2021, the Exparte Applicants sought leave for new advocates to come on record, extension of time to file a Notice of Appeal against a judgment delivered by Obaga J on 8th October 2020 (which had quashed, in a judicial review, the revocation of their titles to L.R. No. 15868/1 and 15868/2), deemed filing of the draft Notice, and stay of execution. The Applicants, through their advocate, claimed they learned of the judgment only in February 2021 when a copy was found dropped on the suit land. The Interested Party countered that the Applicants' former advocates, T. M. Kuria & Co. Advocates, took a judgment date by consent, that the delay of about six months was inordinate and unexplained, and that counsel was deponing to matters outside his knowledge. Angote J, applying section 7 of the Appellate Jurisdiction Act and the Leo Sila Mutiso principles, noted from the record that the Applicants' advocate was in court on 25th June 2020 when the judgment date was pronounced. The court held that neither the Applicants nor the advocate on record had sworn an affidavit explaining the failure to file the Notice of Appeal, and that it was erroneous for the new advocate to depone to facts only the Applicants could know. Granting only prayer (a) on change of advocates, the court dismissed the application with costs on 9th December 2021.

Key legal issues

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01

Whether extension of time to file Notice of Appeal should be granted

Holding

Application dismissed because the delay was unexplained; the Applicants' advocate knew the judgment date but no affidavit explained the failure to lodge the Notice of Appeal in time.

Reasoning

The court noted the record showed counsel for the Applicants was present when the judgment date was reserved and pronounced. Neither the Applicants nor their former advocate swore an affidavit explaining the failure to file the Notice of Appeal. The new advocate deponed to facts properly within the Applicants' knowledge, which the court held to be erroneous. Applying the Mutiso discretion factors, the delay of some six months was unexplained and inordinate.

p. 2
02

Whether counsel could depone to matters of fact within the Applicants' knowledge

Holding

The court held it was erroneous for the new advocate to depone to facts, such as how and when the Applicants learned of the judgment, that only the Applicants or the advocate on record could know.

Reasoning

The court observed that the deponent was neither a party nor the advocate on record at the time the judgment was delivered. Matters such as service of the judgment and when the Applicants found it dropped on the land could only be deponed to by the Applicants themselves. Absent a proper affidavit from them, the reason for the delay remained unexplained.

p. 2

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary and considers the length of delay, reason for delay, chances of appeal succeeding and degree of prejudice to respondents.
  • A litigant seeking extension of time must personally depone to the facts explaining the delay; counsel cannot depone to facts only within the litigant's knowledge.

Court orders

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  1. 1.Leave granted to the firm of Njenga Maina & Advocates to come on record in place of Njuguna, Kahari & Kiai Advocates (prayer (a))
  2. 2.Application dated 19th April 2021 dismissed with costs, save for prayer (a)

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7

Cases cited (1)

  • Leo Sila Mutiso vs Rose Wangari Mwangi
    Civil Appeal No. Nairobi 255 of 1997
On appeal from
High Court of Kenya (Nairobi)
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act, Cap 9

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, "Joseph Mungai Gichuru & another v National Land Commission & 2 others [2021] KEELC 429 (KLR)", Case Analysis (2021). Judicial Review Miscellaneous Application (Notice of Motion dated 19th April, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/429/eng@2021-12-09

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