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ELCPartially AllowedMotion dated 25/05/2021 in Siaya HC Civil Appeal No. 2 of 2020 (arising from Bondo PM. ELC No. 71 of 2018)· [2021] KEELC 1270 (KLR)

Paul Omuko Sidede v James Okumu Kizito & James Juma Openjih (Environment and Land Appeal 30 of 2021) [2021] KEELC 1270 (KLR)

High Court of Kenya (Environment and Land Court, Siaya)
1 November 2021
AKA. Y. Koross
1,845 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court allowed a land owner to appeal a year late because his lawyer filed in the wrong court, ruling that a client shouldn't pay for an advocate's mistake.

What this practically means

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Executive summary

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By a motion dated 25/05/2021, the appellant sought leave to file an appeal out of time against the judgment of the Bondo magistrate's court delivered on 19/12/2019, which had dismissed his suit claiming to be the registered owner of NORTH SAKWA/NYAWITA/7070 and 7071 with costs to the 2nd respondent, a self-professed bona fide purchaser. The appellant had initially filed an appeal in Siaya High Court (Civil Appeal No. 2 of 2020), which was summarily struck out on 27/01/2020 for want of jurisdiction; the ruling was only communicated to him on 4/12/2020, a delay the court attributed partly to the Covid-19 pandemic. The respondents opposed, arguing deliberate delay, that counsel's mistakes should be borne by the client, and that no decree had been extracted. Applying the Supreme Court's Salat principles and Sections 79G and 95 of the Civil Procedure Act and Section 16A of the Environment and Land Court Act, the court held that the delay of approximately 1 year and 5 months was not inordinate, that the advocate's error in filing in the wrong court should not be visited on the appellant, that the memorandum of appeal disclosed an arguable case, and that no prejudice to the respondents had been demonstrated. The court declined to entertain submissions on stay of execution because that prayer had been spent at the interim stage. The motion was allowed: leave to appeal out of time was granted, the memorandum and record of appeal were deemed duly filed, the lower court file was to be availed within 30 days, with costs awarded to the respondents.

Key legal issues

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01

Whether the appellant demonstrated good and sufficient cause for the delay of approximately 1 year and 5 months in filing the appeal in the correct forum

Holding

The delay was not inordinate. The appellant appealed in time but to a court without jurisdiction; the High Court ruling was communicated late, partly due to the Covid-19 pandemic, and counsel's mistake should not be visited on the appellant.

Reasoning

The court applied the Salat principles. The appellant had acted timeously by filing an appeal, albeit in the High Court, which struck it out for want of jurisdiction. The pandemic explained the delay in communicating the ruling. The advocate's error in choosing the wrong forum was not attributable to the appellant. The delay of about 1 year and 5 months was therefore excusable.

p. 3
02

Whether the respondents would suffer prejudice if the extension was granted, and whether the appeal was arguable

Holding

No prejudice was demonstrated by the respondents, and the memorandum of appeal disclosed an arguable case, so the appellant should not be denied access to the seat of justice.

Reasoning

The court examined the annexed memorandum of appeal and found the grounds arguable with possibility of success. The respondents did not demonstrate any prejudice they would suffer. On these Salat criteria, the motion for leave to appeal out of time was merited and leave was granted.

p. 3

Legal principles established

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  • Extension of time is not a right of a party; it is an equitable remedy available to a deserving party at the discretion of the court, guided by the Salat principles
  • The mistake of an advocate should not be visited upon the client where the client was keen to pursue an appeal in time

Court orders

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  1. 1.The appellant is granted leave to appeal out of time in terms of prayer 3 of the motion dated 25/05/2021
  2. 2.The draft memorandum of appeal dated 7/12/2020 be deemed as duly filed
  3. 3.The record of appeal dated 10/12/2021 be deemed as duly filed
  4. 4.Lower court file to be availed to this court within 30 days from today
  5. 5.Case to be mentioned for directions on 24/11/2021
  6. 6.Costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSections 3A, 79G and 95
  • Civil Procedure RulesOrder 50 Rule 6
  • Environment and Land Court ActSection 16A

Cases cited (4)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & Ano.
    (2018) eKLR
  • Philip Chemwolo & Ano. v Augustine Kubede
    (1982-88)
  • Richard Nchapi Leiyagu v IEBC & 2 others
On appeal from
Bondo Principal Magistrate's Court (Environment and Land)
ELC No. 71 of 2018
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act, Section 3A of the Civil Procedure Act, Order 50 Rule 6 of the Civil Procedure Rules and Section 16A of the Environment and Land Court Act

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, "Paul Omuko Sidede v James Okumu Kizito & James Juma Openjih (Environment and Land Appeal 30 of 2021) [2021] KEELC 1270 (KLR)", Case Analysis (2021). Motion dated 25/05/2021 in Siaya HC Civil Appeal No. 2 of 2020 (arising from Bondo PM. ELC No. 71 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1270/eng@2021-11-01

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