Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (Notice of motion dated 24th July 2020, filed 29th July 2020)· [2021] KEELC 4068 (KLR)

David Dachi Akuku v Jane Aketch Ondoro [2021] KEELC 4068 (KLR)

Environment and Land Court
3 March 2021
GOG.M.A. Ongondo
1,691 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to extend time to appeal because the applicant waited nearly two years without explaining the delay.

What this practically means

#

Executive summary

#
By a notice of motion dated 24th July 2020, David Dachi Akuku, the defendant in Oyugis SPM Civil Case No. 83 of 2015, sought leave to change advocates after judgment, extension of time to appeal out of time against the judgment and decree delivered on 12th November 2018 in favour of Jane Aketch Ondoro, a stay of execution, and an inhibition against registration of transactions on parcel CENTRAL KASIPUL/KACHIEN/2015. He blamed his former advocate, who had instead of appealing filed a fresh suit, Migori ELC Case No. 141 of 2018 (O.S). The respondent opposed the application as an afterthought aimed at dodging imminent execution, pointing out that an earlier stay application had been dismissed, that the applicant had remained indolent, had been committed to civil jail and had partially settled the decree by paying Kshs. 45,000/-. Adopting the twin issues framed by the respondent, namely whether sufficient reasons for the delay were given and whether the application was merited, the court noted that the application was brought one year, eight months and 12 days after judgment. Applying the principles in Pullin Harakchand Shah v Southern Credit Banking Corporation Ltd and Hamam Singh v Mistri, the court held that mistakes of counsel do not excuse inordinate delay, that an applicant who gives no reasons for delay cannot succeed, and that the principles that equity aids the vigilant and not the indolent, and that delay defeats equity, anchored in Article 10(2)(b) of the Constitution, weighed against the applicant. The application was found not brought in good faith and an abuse of the court process, and was dismissed in its entirety with costs to the respondent.

Key legal issues

#
01

Whether sufficient cause was shown to warrant extension of time to appeal out of time under section 79G of the Civil Procedure Act

Holding

No sufficient cause was shown; the delay of one year, eight months and 12 days was inordinate and unexplained, and the applicant was indolent

Reasoning

Judgment was delivered on 12th November 2018 but the application was only brought on 29th July 2020. The applicant blamed his former counsel, but per Hamam Singh v Mistri, mistakes of a legal adviser may amount to sufficient cause only where there is no inordinate delay. The applicant had also filed a fresh suit instead of appealing and had earlier sought stay which was dismissed. The equity principles that equity aids the vigilant and not the indolent, and that delay defeats equity, applied against him.

p. 2
02

Whether the application merited the discretionary reliefs of change of advocate, stay of execution and inhibition

Holding

The application failed to meet the threshold in Pullin Shah v Southern Credit Banking Corporation Ltd and was dismissed with costs

Reasoning

The court's discretion under section 95, Order 50 Rule 6 and sections 68 and 69 had to be exercised judicially. The applicant had remained indolent, was committed to civil jail and partially settled the decree by paying Kshs. 45,000/-. The court agreed with the respondent that the application was not brought in good faith and was an abuse of the court process.

p. 2

Legal principles established

#
  • In deciding whether to grant extension of time, the court considers the length of the delay, the reasons therefor, the chances of success of the intended appeal and the prejudice to the respondent
  • An application for extension of time where the applicant fails to give reasons for the delay is not tenable and should be dismissed
  • Mistakes of a legal adviser may amount to sufficient cause but not inordinate delay on his part
  • Litigation must come to an end

Court orders

#
  1. 1.The application dated 24th July 2020 and filed on 29th July 2020 is disallowed
  2. 2.Costs of the application awarded to the respondent

Authorities

#

Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A, 79G, 95
  • Civil Procedure Rules, 2010Order 51 Rule 1, Order 51 Rule 16, Order 50 Rules 4, 6 and 8, Order 46 Rule 6, Order 42 Rule 6, Order 9 Rules 9, 10 and 11
  • Land Registration ActSections 68(1) and 69
  • Environment and Land Court ActSections 3 and 19(1)
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33
  • Constitution of Kenya, 2010Articles 10(2)(b), 50(1) and 159(2)(b)(d) and (e)

Cases cited (6)

  • Abdinoor Shurie =vs= Halima Bundid
    (2020) eKLR
  • Pullin Harakchand Shah =vs= Southern Credit Banking Corporation Ltd
    (2016) eKLR
  • Dilpack Kenya Ltd =vs= William Kitonyi
    (2018) eKLR
  • Philip Chemwolo and another =vs= Augustine Kubende
    (1982-88) KAR 103
  • Hamam Singh and others =vs= Mistri
    (1971) EA 123
  • Naomi Wangechi Gitonga and 3 others =vs= IEBC and 17 others
    Civil Application number 41 of 2014 (2018) eKLR
Jurisdiction invoked
Sections 1A, 95 and 79G of the Civil Procedure Act (Cap 21) read with Order 51 Rule 1, Order 46 Rule 6 and Order 9 Rules 9 and 10 of the Civil Procedure Rules, 2010 and Section 68(1) of the Land Registration Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "David Dachi Akuku v Jane Aketch Ondoro [2021] KEELC 4068 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of motion dated 24th July 2020, filed 29th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4068/eng@2021-03-03

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