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ELCDismissed· [2021] KEELC 1044 (KLR)

Michael Kanyi Mwarano v Festus Murimi Mwarano [2021] KEELC 1044 (KLR)

Environment and Land Court
5 November 2021
ECE.C. CHERONO
1,885 words in judgment
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The bottom line

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A Kenyan land court refused to revive a long-dormant appeal, ruling that blaming your lawyer and claiming illness cannot excuse years of inaction.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Kerugoya by Notice of Motion dated 18th March, 2021 seeking reinstatement of his appeal dismissed on 26th April, 2016 under Order 17 Rule 2 of the Civil Procedure Rules for want of prosecution, and that the case be set in the cause. He blamed his former advocate, Mr. Gitonga D N, with whom he lost contact, and pleaded prolonged illness, contending that an advocate's mistakes should not be visited on a client and that the lower court decree — that land parcel Kiine/Kibingoti/Nguguine/43 be shared equally between the applicant and the respondent, biological brothers — had been distorted by the respondent's misrepresentation to registering authorities. The respondent opposed, arguing the appeal had lain idle from 2009 to 2016, the application came about four years after dismissal, the illness was unsupported by hospital admission, and the decree had already been executed, with a rectification attempt stalled by a stay issued on 12th November, 2010. E.C. Cherono, ELC Judge, applied Savings and Loans Ltd v Susan Wanjiru Muritu and Rukenya Buuri, holding that a case belongs to the litigant and blaming a former advocate is insufficient without tangible follow-up steps; the applicant's illness did not excuse the delay, and equity aids the vigilant, not the indolent. Noting some fault by the respondent in execution but accepting his explanation, the court found it in the interest of justice to end litigation of roughly 15 years and dismissed the application with costs on 5th November, 2021.

Key legal issues

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01

Whether mistake of an advocate justifies reinstatement of a dismissed appeal

Holding

It is not in every case that an advocate's mistake is a ground for setting aside orders; the litigant has a duty to pursue the case and must show tangible steps

Reasoning

The court adopted the reasoning in Savings and Loans Ltd v Susan Wanjiru Muritu and Rukenya Buuri: a case belongs to the litigant, who must diligently check the progress of the case. Blaming a former advocate is insufficient absent demonstrated follow-up. The applicant had not shown steps taken with his former advocates, and after filing a Notice to Act in person he still failed to prosecute.

p. 3
02

Whether illness excused the delay

Holding

The applicant's sickness was not sufficient reason for the inaction and the approximately four-year delay in applying for reinstatement

Reasoning

The treatment notes were for diverse dates and the applicant was never admitted in hospital for the period of the delay. He filed the application about four years after dismissal, by which time the lower court decree had been executed. The court applied the maxim that equity aids the vigilant, not the indolent, and held it in the interest of justice to end litigation commenced some 15 years earlier.

p. 3

Legal principles established

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  • A case belongs to the litigant, not the advocate; a litigant must show tangible steps taken to follow up the matter rather than merely blame the advocate
  • Equity aids the vigilant and not the indolent

Court orders

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  1. 1.The Notice of Motion dated 18th March, 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1)

Cases cited (5)

  • Edney Adaka Ismail Vs Equity Bank Limited
    [2014] e KLR
  • Lucy Bosire Vs Kehancha Div. Land Dispute Tribunal & 2 Others
  • Philip Keipto Chemwolo & Another Vs Augustine Kubende
    [1986] KLR 492; [1982-88] 1 KAR 1036 at 1042; [1986-1989] EA 74
  • Savings and Loans Limited Vs Susan Wanjiru Muritu
    Nairobi (Milimani) HCCS No. 397 of 2002
  • Rukenya Buuri Vs M’arimi Minyora & 2 others
    [2018] e KLR
Jurisdiction invoked
Civil Procedure Rules, Order 17 Rule 2

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, "Michael Kanyi Mwarano v Festus Murimi Mwarano [2021] KEELC 1044 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1044/eng@2021-11-05

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