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ELCPartially AllowedMolo CMCC (ELC) No. 89 of 2019 (appeal therefrom; Notice of Motion dated February 1, 2022)· [2021] KEELC 4735 (KLR)

Kung’u v Gitau & another (Environment and Land Miscellaneous Application E002 of 2022) [2021] KEELC 4735 (KLR)

High Court of Kenya
12 May 2022
2,816 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

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Kenya's High Court gave a landowner a second chance to appeal after her lawyer missed the 30-day deadline, because the delay was explained and no one was harmed.

What this practically means

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Executive summary

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This is a ruling of the High Court at Nakuru (L. A. Omollo, J) on the Applicant's Notice of Motion dated February 1, 2022, brought under sections 79G and 95 of the Civil Procedure Act and Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, 2010, seeking extension of time to lodge a memorandum of appeal against the judgment of Hon. E. Nderitu (CM) in Molo CMCC (ELC) No. 89 of 2019 delivered on September 21, 2021, which dismissed her suit. The Applicant explained that her former advocates, the firm of Odhiambo & Odhiambo, received instructions to appeal but failed to file the memorandum, and that her current counsel, instructed on November 15, 2021, could not obtain copies of the judgment and proceedings after requesting them on December 15, 2021. The 2nd Respondent opposed, contending the application was incompetent, that the supporting affidavit was wrongly sworn by counsel, that counsel had not sought leave to come on record after judgment, and that the intended appeal wrongly invoked the Matrimonial Property Act; she also sought security of Kshs. 500,000. Framing two issues - whether good and sufficient cause for the delay had been shown, and who should bear costs - the court applied the Salat and Mutiso principles and the mistake-of-counsel jurisprudence, found the over four-month delay adequately explained, noted the respondents had shown no prejudice, and declined to shut the doors of justice. The application was allowed: leave to appeal out of time was granted, the memorandum of appeal was to be filed and served within 15 days, and the costs of the application were to abide the intended appeal.

Key legal issues

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01

Whether the Applicant demonstrated good and sufficient cause for the over four-month delay in filing the memorandum of appeal

Holding

The court found the delay adequately explained, principally by the mistake of the applicant's former advocates and her desire to appeal, and that the respondents would suffer no prejudice

Reasoning

The court accepted that the former firm received instructions to appeal but did not file it. It noted that obtaining typed proceedings was unnecessary to lodge a memorandum of appeal, so the more plausible cause was counsel's mistake. Applying the Salat and Mutiso principles, the court weighed the length of and reason for delay, absence of prejudice to respondents, and the applicant's eagerness to pursue the appeal, and declined to close the doors of justice.

p. 6
02

Whether counsel's failure to seek leave before coming on record post-judgment defeated the application

Holding

The procedural lapse was not fatal because the respondents did not challenge it and the consent of the two firms had been endorsed by the trial court

Reasoning

The court acknowledged that leave should have been sought before counsel came on record after judgment. However, since the respondent did not press that objection and the consent entered between the former and current firms had been received and endorsed by the Chief Magistrate's Court at Molo, the firm of Odundo Odhiambo & Co Advocates remained properly on record.

p. 4
03

Who bears the costs of the application

Holding

Costs were made to abide the intended appeal rather than being awarded outright

Reasoning

The court noted the general rule under section 27 of the Civil Procedure Act that costs follow the event and a successful party ordinarily gets costs unless the court directs otherwise for good reason. In the exercise of its discretion, the court directed that the costs of the application await the outcome of the intended appeal.

p. 6

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the discretion of the court, exercised judiciously and not capriciously
  • An appeal from a subordinate court to the High Court must be filed within thirty days of the decree, unless the appellant shows good and sufficient cause for delay
  • Courts will readily excuse a mistake of counsel where it affords a justiciable, expeditious and holistic disposal, though the exercise of such discretion is not automatic

Court orders

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  1. 1.The Applicant is granted leave to file an Appeal out of time against the judgment in Molo CMCC (ELC) No. 89 of 2019 delivered on 21st September 2021
  2. 2.The Applicant shall file and serve the memorandum of Appeal within 15 days from the date of the ruling
  3. 3.The cost of this application shall abide the intended Appeal

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 65
  • Civil Procedure Act (Cap. 21)Section 27
  • Civil Procedure Rules, 2010Order 42 rule 6
  • Civil Procedure Rules, 2010Order 51 rule 1
  • Matrimonial Property Actreferred to as challenged in the memorandum of appeal (came into effect January 16, 2014)

Cases cited (9)

  • Evans Kiptoo Vs Reinhard Omwoyo Omwoyo
    [2021] eKLR
  • Nicholas Kiptoo Korir Arap Salat vs IEBC & 7 Others
    [2014] eKLR
  • Stanley Kaiyongi Mwenda Vs Cyprian Kubai
    [2000] eKLR
  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    Civil Application No. Nai 255 of 1997 (unreported)
  • Tana & Athi Rivers Development Authority vs Jeremiah Kimigho Mwakio & 3 Others
    [2015] eKLR
  • Sterol Corporation Limited vs Susan Awuor Mudemba
    [2021] eKLR
  • Belinda Mural & 9 Others vs Amos Wainoni
    [1978] eKLR
  • Shah H. Bharmal & Brothers vs Kumar
    [1961] EA 679
  • Hamam Singh & Others vs Mistri
    [1971] EA 122
On appeal from
Chief Magistrate's Court at Molo (Environment and Land Court)
Molo CMCC (ELC) No. 89 of 2019
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act and Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, 2010

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, "Kung’u v Gitau & another (Environment and Land Miscellaneous Application E002 of 2022) [2021] KEELC 4735 (KLR)", Case Analysis (2022). Molo CMCC (ELC) No. 89 of 2019 (appeal therefrom; Notice of Motion dated February 1, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4735/eng@2022-05-12

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