Joseph Kiprepeli Lotukei v Stephen Toroitich Korkou (Environment & Land Case 147 of 2014) [2021] KEELC 4399 (KLR)
The bottom line
#A Kitale court reversed itself after realising it dismissed an appeal-extension request while overlooking submissions that had actually been filed.
What this practically means
#Executive summary
#Key legal issues
#Review on ground of error on face of record
The applicant's submissions had been filed but overlooked, and the perceived absence of submissions had a notable impact on the court's decision dismissing the extension-of-time application; this constitutes an error apparent on the face of the record and a sufficient reason under Order 45 1(c).
The court had ordered filing of submissions as a substitute for oral arguments; it erroneously recorded that no submissions were filed and, lacking them, found itself unpersuaded and dismissed the application. Since it later transpired the submissions had in fact been filed through no fault of the applicant, the erroneous premise vitiated the ruling and justified review and setting aside of the orders of 17/12/2020.
Explanation for delay in extension of time application
The delay of only 6 days beyond the 14-day period in filing the Notice of Appeal and the 5-month delay in lodging the extension application were adequately explained; the delay was inadvertent and not deliberate.
The court accepted the applicant's explanations regarding the pandemic restrictions on access to court premises, non-communication by his former advocate, and difficulties with electronic filing. It declined to demand self-incriminating affidavits from counsel or the court clerk, granting the applicant the benefit of doubt, and held the 1½-month delay in the review application was not inordinate.
Change of advocates after judgment (Order 9 rule 9)
A consent between incoming and outgoing advocates suffices to effect a change of advocates after judgment; failure to file notices of change and appointment is a curable technicality under Article 159(2)(d) of the Constitution.
Reading Order 9 rule 9(a) and (b) disjunctively, the court found the consent dated 7/10/2020 sufficient. The unfiled notices were treated as formalities; justice is to be administered without undue regard to technicalities, and counsel could be compelled to file the omitted documents without prejudice to the respondent.
Legal principles established
#- A court's failure to consider submissions which had in fact been filed, where it had ordered submissions as a substitute for oral arguments, constitutes an error on the face of the record and/or a sufficient reason for review under Order 45 1(c).
- Under Order 9 rule 9, a consent signed between incoming and outgoing advocates is sufficient to effect a change of advocates after judgment; unfiled notices of change and appointment are non-fatal technicalities under Article 159(2)(d).
Court orders
#- 1.The orders of the court dated 17/12/2020 dismissing the application dated 28/10/2020 are reviewed and set aside
- 2.The application dated 28/10/2020 is allowed; extension of time of 14 days granted to file and serve a notice of appeal
- 3.The Notice of Appeal dated 2/6/2020 deemed properly filed upon payment of appropriate filing fees and to be served on the respondent within 14 days
- 4.The applicant's counsel to file and serve notice of change and notice of appointment within 14 days
- 5.The order awarding the respondent costs of the application dated 28/10/2020 vacated
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kiprepeli Lotukei v Stephen Toroitich Korkou (Environment & Land Case 147 of 2014) [2021] KEELC 4399 (KLR)", Case Analysis (2021). Not stated in the judgment extract (application dated 21/1/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4399/eng@2021-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.