Isaiah Kasyula Kwinga v Rosaria Kavuli Kimuyu & another [2021] KEELC 2087 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a landowner to file his appeal eight years late, ruling his lawyer's mistake shouldn't cost him his day in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in prosecuting the application for leave to appeal out of time was explained and justified
The delay was largely attributable to counsel, not the litigant, and it would be unjust to blame the Applicant for his counsel's mistake
The court found from the record that the application dismissed on 18th December 2017 was for stay of execution, not the leave application of 9th December 2013, which remained pending. The advocate deposed that he honestly believed an appeal had been filed and never addressed his mind to the need for leave. Relying on Belinda Muras & 6 Others v Amos Wainaina, the judge held a mistake by counsel should not close the door of justice on the litigant.
Whether the Respondent was properly enjoined and whether the suit against the deceased defendant had abated under Order 24 Rule 4
The court noted the record showed an application to enjoin the Respondent dated 17th October 2012 was allowed on 11th December 2012, but deferred the abatement question to the appeal itself
The Respondent argued the suit against her deceased husband abated one year after his death on 8th December 2010 since no substitution occurred. The court, perusing the uncertified proceedings, observed the application to enjoin the Respondent was allowed on 11th December 2012, but held this was a matter to be dealt with on merits during the appeal, not on this application.
Whether the Applicant had an arguable appeal and whether the Respondent would suffer prejudice
The intended appeal raised serious issues (concession that 6 acres were sold and 23 years' possession), and the Respondent could be compensated by costs, so the Applicant deserved his day in court
The Applicant's primary complaint was that the lower court judgment failed to consider the deceased's sworn concession that he sold 6 acres, and his 23 years of possession. Guided by Edith Gichungu Kome v Stephen Njagi Thoithi, the judge exercised discretion in favour of granting leave, holding the Respondent would not be prejudiced since costs could compensate her if the appeal failed.
Whether leave was required to amend the application dated 9th December 2013
No leave to amend was needed since the Respondent had not responded to the application being amended
The Respondent argued the amended notice of motion could not stand on its own after the earlier application was dismissed and that no leave to amend had been granted. The court held that the Respondent could not demand that leave be sought to amend when she had filed no response to the original application, so the amendment was proper.
Legal principles established
#- A litigant should not be blamed for the mistake of counsel; the door of justice is not closed because a mistake has been made by an experienced lawyer
- An applicant for leave to appeal out of time should not be denied the opportunity merely because the respondent can be compensated by costs if the appeal fails
Court orders
#- 1.That the Applicant is hereby granted leave to appeal out of time against the judgement and orders of Honourable J. Karanja (Principle Magistrate) delivered on 20th September, 2013 in Makueni PMCC No. 173 of 2009
- 2.That the amended memorandum of appeal annexed hereto be deemed as duly filed upon payment of the court fees
- On appeal from
- Principal Magistrate's Court, Makueni
- Makueni PMCC No. 173 of 2009
- Jurisdiction invoked
- Sections 3A, 79G and 95 of the Civil Procedure Act (Cap 21) and Order 50 Rule 6, Order 51 Rule 1, Order 9 Rules 9(a) and 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaiah Kasyula Kwinga v Rosaria Kavuli Kimuyu & another [2021] KEELC 2087 (KLR)", Case Analysis (2021). Makueni ELC Case (application dated 8th December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2087/eng@2021-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.