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ELCAllowedNot stated in the judgment extract (application dated 21/1/2021)· [2021] KEELC 4399 (KLR)

Joseph Kiprepeli Lotukei v Stephen Toroitich Korkou (Environment & Land Case 147 of 2014) [2021] KEELC 4399 (KLR)

Environment and Land Court
11 February 2021
2,914 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff (applicant) moved the Environment and Land Court at Kitale by an application dated 21/1/2021 seeking review, variation and setting aside of the court's orders of 17/12/2020, which had dismissed his application dated 28/10/2020 for extension of time to file a notice of appeal out of time. The applicant argued there was an error on the face of the record: the impugned ruling stated he had never filed submissions, yet he had in fact filed them on 26/11/2020, as evidenced by an e-filing receipt. The respondent opposed, citing inordinate delay, counsel's failure to follow up with the registry, and the pending taxation. The court confirmed the submissions had indeed been filed and held that, since filing of submissions had been ordered as a substitute for oral arguments, their perceived absence materially affected the ruling and constituted an error on the face of the record and a sufficient reason under Order 45 1(c). On the merits, the court found the 6-day overshoot in filing the Notice of Appeal and the 5-month delay in lodging the extension application adequately explained amid pandemic-related restrictions and electronic filing difficulties, rejecting demands for self-incriminating affidavits from counsel or a court clerk. It further held that a consent between incoming and outgoing advocates sufficed under Order 9 rule 9, and unfiled notices were curable technicalities under Article 159(2)(d). The court reviewed and set aside the orders of 17/12/2020, allowed the application dated 28/10/2020, granted 14 days to file and serve a notice of appeal, deemed the Notice of Appeal properly filed upon payment of fees, directed filing of the change-of-advocate notices, vacated the costs order, and made all costs costs in the appeal.

Key legal issues

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01

Review on ground of error on face of record

Holding

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).

Reasoning

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.

p. 2
02

Explanation for delay in extension of time application

Holding

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.

Reasoning

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.

p. 3
03

Change of advocates after judgment (Order 9 rule 9)

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The orders of the court dated 17/12/2020 dismissing the application dated 28/10/2020 are reviewed and set aside
  2. 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. 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. 4.The applicant's counsel to file and serve notice of change and notice of appointment within 14 days
  5. 5.The order awarding the respondent costs of the application dated 28/10/2020 vacated

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 (rules 1(c))
  • Civil Procedure RulesOrder 9 rule 9
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (8)

  • Richard Ncharpai Leiyangu vs IEBC and 2 Civil Appeal No. 18 of 2012
  • Hedwig HRT Mitterlerhner Ulrich v Jemdroci Spin
    [2016] eKLR
  • Teachers Service Commission V Simon P Kamau & 19 Others
  • Khalif Sheikh Adan vs Attorney General
    [2019] eKLR
  • Afit Kumar Rath V State of Orisa & Others
  • Habo Agencies Limited vs Wilfred Odhiambo Musingo
    [2015] eKLR
  • Pyramid Hauliers Ltd Vs James Omingo Nyaanga & 3 Others
    [2019] eKLR
  • Andrew Kiplagat Chemaringo Vs Paul Kipkorir Kibet
    eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

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, "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.