Kung’u v Gitau & another (Environment and Land Miscellaneous Application E002 of 2022) [2021] KEELC 4735 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated good and sufficient cause for the over four-month delay in filing the memorandum of appeal
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
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.
Whether counsel's failure to seek leave before coming on record post-judgment defeated the application
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
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.
Who bears the costs of the application
Costs were made to abide the intended appeal rather than being awarded outright
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.
Legal principles established
#- 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
#- 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.The Applicant shall file and serve the memorandum of Appeal within 15 days from the date of the ruling
- 3.The cost of this application shall abide the intended Appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.