Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedKitale ELC Misc. Civil Application No. 12 of 2017 (application dated 11/3/2020)· [2021] KEELC 3277 (KLR)

Onindo Onindo & Associates Advocates v Gatatha Farmers Co. Ltd & another [2021] KEELC 3277 (KLR)

Environment and Land Court
18 May 2021
MNMwangi Njoroge
2,854 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Kitale on a third application by Onindo Onindo & Associates Advocates arising from taxation of an Advocates' Bill of Costs in Kitale ELC Misc. Civil Application No. 12 of 2017. The applicant sought extension of time to file an application for leave to appeal against the court's ruling delivered on 18/7/2019 dismissing its first application to review and enhance taxed costs. Under Rule 39(b) of the Court of Appeal Rules, the leave application was due within 14 days of the ruling; the instant application was filed approximately 8 months and 6 days late. The respondents opposed, deponing that costs had been paid in November 2018, that typed proceedings were unnecessary for a leave application, and that statutory timelines protect parties from belated proceedings. The court found the delay inordinate but attributable to counsel, who admitted pursuing typed proceedings instead of filing the leave application. Applying the Supreme Court's guidance in Salat and the Court of Appeal's approach in Vishva Stone Suppliers, the court held it would be unjust to deny the client the right of appeal for counsel's mistake, while balancing the respondents' entitlement to peace of mind after settling costs, noting only recoverable legal-fee inconvenience would ensue. The court allowed the application in terms of prayer (2), ordered the leave application to be filed and served within 14 days failing which the extension lapses automatically, and directed that costs abide the outcome of the leave application.

Key legal issues

#
01

Whether the applicant explained the inordinate delay of 8 months and 6 days in seeking leave to appeal

Holding

The delay was inordinate but was found attributable to counsel's erroneous pursuit of typed proceedings rather than the client, and was excused

Reasoning

The court found the firm knew of the ruling as early as 29/7/2019, having requested proceedings and filed a notice of appeal, so the claim of losing track of the ruling was untenable. Counsel admitted pursuing typed proceedings instead of the leave application. Following the approach in Vishva Stone Suppliers, the court declined to punish the client for counsel's default, though counsel lacked the candour shown there.

p. 3
02

Whether prejudice to the respondent, who had already paid the taxed costs in November 2018, should defeat the extension

Holding

The inconvenience to the respondent was limited to legal fees recoverable from the applicant if unsuccessful, so the extension was granted

Reasoning

The court weighed the respondent's entitlement to peace of mind after settling the decretal sum against the applicant's constitutionally underpinned right of appeal. Since the leave application would demand nothing of the respondents beyond the expense of legal fees, recoverable at the end of the proceedings, the balance favoured granting the extension.

p. 3

Legal principles established

#
  • The discretion to extend time is unfettered but must be exercised judiciously; extension of time is an equitable remedy available only to a deserving party
  • A litigant should not be shut out from the right of appeal on account of a mistake of counsel attributable solely to counsel and not the client
  • The deference to the right of appeal must be balanced against the opposite party's entitlement to peace of mind after proceedings have ended, especially where they have complied with the order
  • Rule 39(b) of the Court of Appeal Rules requires an application for leave to appeal in civil matters to be filed within fourteen days of the decision sought to be appealed from

Court orders

#
  1. 1.Extension of time granted in terms of prayer No. (2) of the application dated 11/3/2021, being extension of time to file an application for leave to appeal against the ruling delivered on 18/7/2019
  2. 2.The application for leave to appeal shall be filed and served within 14 days of the order, failing which the extension of time granted shall automatically lapse
  3. 3.Costs of the application to abide the outcome of the application for leave to appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 39, particularly rule 39(b)

Cases cited (3)

  • Nicholas Kiptoo arap Korir Salat vs IEBC & 7 Others
    (SC) eKLR
  • DHL Exel Suppl Chain Kenya Limited v Tilton Investments Limited
    [2015] eKLR
  • Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited
    [2020] eKLR
Jurisdiction invoked
Inherent discretion of the ELC to extend time under Rule 39(b) of the Court of Appeal Rules governing applications for leave to appeal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Onindo Onindo & Associates Advocates v Gatatha Farmers Co. Ltd & another [2021] KEELC 3277 (KLR)", Case Analysis (2021). Kitale ELC Misc. Civil Application No. 12 of 2017 (application dated 11/3/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3277/eng@2021-05-18

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