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ELCDismissedNot stated in the judgment· [2021] KEELC 1160 (KLR)

John Kirui v Richard Rono [2021] KEELC 1160 (KLR)

Environment and Land Court
4 November 2021
JMJ M Mutungi
1,988 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to excuse an 8-month appeal delay, ruling that blaming your lawyer is not a valid reason for missing deadlines.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nakuru dealt with a Notice of Motion by the respondent/applicant seeking leave to file a notice of appeal out of time and a stay of execution of the judgment and decree of 4th May 2017, which had allowed the appellant/respondent's appeal over land parcel No. Nakuru Tinet Settlement Scheme/2296. The applicant claimed he learned of the judgment only on 1st December 2017 when served with an eviction order, blaming his advocate for failing to inform him. The appellant/respondent countered that the applicant was present through counsel at judgment delivery, was served with the decree on 27th May 2017 and signed it in acknowledgment. The court framed a single issue: whether the applicant had laid a reasonable basis for the court to exercise its discretion to extend time. Applying the principles in Salat, Ratnam, Rajesh Rughani and Habo Agencies, the court noted the delay was eight months and seventeen days; that counsel was present at judgment; that post-judgment taxation activity showed the advocate's engagement; and that a party has a continuing duty to monitor its own case. Blaming the advocate was not an excusable mistake. The application was dismissed with costs to the appellant/respondent on 4th November 2021.

Key legal issues

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01

Whether the delay of eight months and seventeen days in filing the notice of appeal was satisfactorily explained

Holding

The delay was not satisfactorily explained; blaming the advocate is insufficient and the application was dismissed with costs

Reasoning

The court applied the Salat principles and the Ratnam standard that rules must prima facie be obeyed. Counsel was present at delivery of judgment and post-judgment activity (taxation of costs) showed the advocate was engaged. No affidavit from the former advocate was obtained. A party must monitor its own case; the advocate's omission, if any, is not an excusable mistake warranting extension of time.

p. 3

Legal principles established

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  • The power to enlarge time is discretionary and the party seeking enlargement must give a good reason for failing to comply with set timelines
  • A litigant cannot escape the consequences of a missed procedural step by blaming the advocate; the party bears a continuing duty to follow up the case

Court orders

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  1. 1.The application for extension of time to file a notice of appeal out of time is dismissed
  2. 2.Costs of the application awarded to the appellant/respondent

Authorities

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Legislation

  • Appellate Jurisdiction Act Cap 9Sections 4 and 7
  • Environment and Land Court ActSections 3, 3(1)
  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure Rules 2010Order 46 Rule 1
  • Court of Appeal Rules 2010Rules 4 and 75(1) and (2)

Cases cited (7)

  • Kariuki Network Limited & Another v Dally & Figgis Advocates
    Civil Application No. Nai 293 of 2009
  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR / [2015] eKLR
  • Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Company Limited
    [2015] eKLR
  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486
  • Ratnam v Cumarasamy
    (1964) 3 All ER 933
  • Rajesh Rughani v Fifty Investment Ltd & Another
    (2005) eKLR
  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    (2015) eKLR
Jurisdiction invoked
Section 4 of the Appellate Jurisdiction Act Cap 9; Sections 3, 3(1) of the Environment and Land Court Act; Sections 3 and 3A of the Civil Procedure Act; Order 46 Rule 1 of the Civil Procedure Rules 2010; Rule 4 of the Court of Appeal Rules 2010

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, "John Kirui v Richard Rono [2021] KEELC 1160 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1160/eng@2021-11-04

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