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ELCDismissedNotice of motion dated 2nd July 2019 (Environment and Land Court, Homabay)· [2021] KEELC 1842 (KLR)

Daniel Mwita Nyaisuti v Mwita Ragita & another [2021] KEELC 1842 (KLR)

Environment and Land Court of Kenya
22 September 2021
1,629 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a late appeal attempt because the litigant switched lawyers after judgment without court permission and waited too long.

What this practically means

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Executive summary

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The applicant, Daniel Mwita Nyaisuti, whose suit had been dismissed with costs on 20th May 2020 by the Environment and Land Court, moved the court by notice of motion dated 2nd July under Articles 40, 48 and 59(2) of the Constitution and Order 42 Rule 6 of the Civil Procedure Rules, seeking enlargement of time to file a notice of appeal out of time and stay of execution of the judgment and decree pending appeal. He contended that judgment was delivered via email in his absence while he was represented by M/s J.O. Soire and Company Advocates, and that he only learned of it on 29th June 2020. The respondents opposed, arguing the application was mounted in breach of Order 9 Rule 9 (as the applicant served a notice to act in person after judgment without a court order or consent), was lodged inordinately late, and failed to demonstrate substantial loss or offer security. The court compressed the issues into competence, the threshold for stay, and the requirements for enlargement of time. Holding Order 9 Rule 9 to be a mandatory provision and approving the Kimote decision, and noting that the applicant filed no submissions, the court found the application incompetent and unmeritorious. It applied Muchungi, Mutiso and Engineers Ltd on the litigant's duty to pursue counsel. The notice of motion was dismissed with costs on 22nd September 2021.

Key legal issues

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01

Competence of the application in light of Order 9 Rule 9

Holding

The application is incompetent because the applicant did not obtain an order or consent to act in person or change advocates after judgment

Reasoning

The court noted the applicant had been represented by M/s J.O. Soire and Company Advocates, and served a notice to act in person after judgment without a court order or consent as required by Order 9 Rule 9. Relying on the Kimote decision, the court held the provision mandatory. The applicant also failed to file submissions, rendering the application unmeritorious.

p. 3
02

Enlargement of time to file notice of appeal

Holding

Not granted; the delay was inordinate and unexplained, and the applicant had a duty to follow up with his counsel

Reasoning

Applying Muchungi and the Mutiso decision that even a day's unexplained delay warrants dismissal, and Engineers Ltd on the litigant's duty to pursue counsel, the court found the applicant, who filed over 40 days after judgment, had not satisfied the requirements for extension of time under Order 50 Rules 6 to 8.

p. 3
03

Stay of execution pending appeal

Holding

Not granted; the applicant did not demonstrate substantial and irreparable loss nor offer security

Reasoning

The respondents argued, relying on Kenya Shell Ltd v Benjamin Karuga Kabiru, that the applicant had not shown substantial loss nor proposed security for costs, and had moved over 40 days after judgment only when execution loomed. The court, having found the application incompetent, dismissed the stay prayer.

p. 2

Legal principles established

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  • Order 9 Rule 9 of the Civil Procedure Rules is a mandatory legal provision governing change of advocate or intention to act in person after judgment
  • Extension of time for lodging an appeal is within the unfettered discretion of the Court, and the applicant must show the delay is excusable and does not prejudice the opponent
  • It is the duty of a litigant to pursue his counsel to find out the position of the case

Court orders

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  1. 1.The notice of motion dated 2nd July 2019 and filed on even date is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 48, 59(2), 159(2)(d) and (e)
  • Civil Procedure Rules, 2010Order 42 Rule 6(1),(2),(5) and (7); Order 9 Rule 9; Order 51 Rule 6; Order 50 Rules 6 to 8
  • Environment and Land Court ActSection 19(1)
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33

Cases cited (9)

  • Stephen Mwangi Kimote v Murata Sacco Society (2018) eKLR
    (2018) eKLR
  • Florence Itare Mkaha v Pwani Tawakal Mini Coach and another (2014) eKLR
    (2014) eKLR
  • Kenya Shell Ltd v Benjamin Karuga Kabiru and another (1986) eKLR
    (1986) eKLR
  • Nicholas Kiptoo Arap Salat v IEBC and 7 others (2013) eKLR
    (2013) eKLR
  • George Mwenda Muthuri v Mama Day Nursery and Primary School Ltd (2014) eKLR
    (2014) eKLR
  • Simbiri NanBell Community Health Centre Ltd v Erick Odede and 4 others (2020) eKLR
    (2020) eKLR
  • Muchungi vs James Muchungi Kiragu & Another
    [1998] eKLR
  • Raphael Musila Mutiso and 3 others vs Joseph Ndava Nthuka and another
    [2019] eKLR
  • Engineers Ltd vs James Kahoro Mwangi
    [2011] eKLR
Jurisdiction invoked
Articles 40, 48 and 59(2) of the Constitution of Kenya, 2010, alongside Order 42 Rule 6(1)(2),(5) and (7) of the Civil Procedure 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, "Daniel Mwita Nyaisuti v Mwita Ragita & another [2021] KEELC 1842 (KLR)", Case Analysis (2021). Notice of motion dated 2nd July 2019 (Environment and Land Court, Homabay). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1842/eng@2021-09-22

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