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ELCOtherNot stated in the judgment (appeal lodged 19.10.2020; memorandum of appeal dated 16.10.2020)· [2022] KEELC 401 (KLR)

Ann Kechi Mubichi v Joshua Kiome Mworia [2022] KEELC 401 (KLR)

Environment and Land Court
27 April 2022
2,640 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan land appeal dismissed for delay got a second chance, but the litigant's new advocates were penalised for coming on record without the court's permission.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (C.K. Nzili, ELC Judge) determined two applications arising from the dismissal on 25.10.2021 of the appellant's appeal against the respondent over land parcel LR No. Kiirua/Naari/2186, a dispute with a 24-year litigation history spanning HCC No. 127 of 1998, CMCC No. 437/2005 (consent judgment) and CMCC No. 172/2014. The application dated 10.2.2022 sought review and setting aside of the dismissal order on grounds of non-service of the notice to show cause and error apparent on the face of the record; the application dated 3.2.2022 sought inhibition and temporary injunction orders pending appeal, alleging a forged mutation and irregular transfer from a deceased owner. The court framed three issues: propriety of the applications, entitlement to setting aside the dismissal, and entitlement to interlocutory relief. It held both applications were improperly before the court because the incoming firm, Mwirigi Kaburu & Co Advocates, filed them without leave to come on record after the dismissal, and their consent with the former firm was never made an order of court; both were struck out with costs. On the merits, the court criticised the appellant's inaction, indolence and failure to follow up with her advocates, but in the interests of justice set aside the dismissal order, extended leave to file the record of appeal within 7 days, awarded throw costs of Kshs. 15,000, directed regularization of appearance within 3 days, and directed that the appeal be listed for hearing within 6 months failing which it stands dismissed.

Key legal issues

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01

Whether the two applications were properly before the court

Holding

Both applications were improperly before the court because the firm of Mwirigi Kaburu & Co Advocates filed them without leave to come on record after the appeal had been dismissed for non-prosecution; the consent dated 26.1.2022 replacing the former advocates was never made an order of court

Reasoning

The court found that as at 3.2.2022 there was no notice of change of advocates and no application for leave to come on record. An appeal once dismissed requires leave before a new firm can act. The consent between advocates was not formalized as an order. Filing without capacity rendered the applications defective and they were struck out with costs.

p. 3
02

Whether the order of 25.10.2021 dismissing the appeal should be set aside

Holding

Although the review application was struck out, the court in the interests of justice and in the exercise of its own discretion set aside the dismissal and extended leave to file the record of appeal within 7 days, on conditions including throw costs

Reasoning

The court found the appellant had not explained her inaction, indolence or failure to follow up with her advocates since 19.10.2020, and had not produced affidavits from the former firm explaining non-compliance. However, despite criticising her conduct, the court in the interests of justice set aside the dismissal but imposed conditions: throw costs, regularization of appearance and a hearing deadline of 6 months failing which the appeal stands dismissed.

p. 3
03

Whether temporary injunction and inhibition orders pending appeal were deserved

Holding

Not determined on merit; the application seeking those orders was struck out as improperly before the court since the appellant's advocates lacked capacity to file it

Reasoning

The respondent argued the appeal, having been dismissed on 25.10.2021, no longer provided a substratum for interlocutory relief. The court did not reach the injunction principles; it disposed of the application on the threshold question of capacity, holding that without leave to come on record the new advocates had no capacity to institute the application.

p. 3
04

Whether the appellant's blame of her former advocates justified reinstatement

Holding

The court held the appellant had not demonstrated diligent follow-up of her own appeal and had attempted to replace advocates without following the law, but nonetheless exercised discretion in her favour subject to conditions

Reasoning

The court noted the former advocates accepted service on 20.9.2021 yet never ceased acting formally, and no affidavit from that firm explained non-filing of the record of appeal. The appellant did not explain a delay of over four months in learning of the dismissal. The court declined to superintend the advocate-client relationship and placed responsibility on the litigant, while still granting a conditional reprieve.

p. 3

Legal principles established

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  • An advocate cannot properly act for a party in a dismissed matter without leave of court to come on record; applications filed without such capacity are struck out
  • Failure to file a record of appeal as directed results in dismissal of the appeal for noncompliance
  • The duty to prosecute a case rests with the litigant and her advocates, who must follow up on the progress of the case

Court orders

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  1. 1.The applications dated 3.2.2022 and 10.2.2022 are struck out with costs for being filed by advocates improperly before the court
  2. 2.The orders made on 25.10.2021 dismissing the appeal are set aside
  3. 3.Leave extended for the appellant to file and serve the record of appeal within 7 days from the date of the ruling
  4. 4.Throw costs of Kshs. 15,000 to be paid to the respondent within 7 days
  5. 5.The firm of Mwirigi Kaburu & Co Advocates to regularize their appearance within 3 days
  6. 6.Appeal to be listed for hearing within 6 months otherwise it shall stand dismissed

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6
  • Constitution of KenyaArticle 159
  • Environment and Land Court ActSections 3 and 13

Cases cited (13)

  • Richard Ncharpi Leiyagu vs IEBC & 2 others
    (2013) eKLR
  • Patriotic Guard vs James Kipchirchir Sambu
    (2018) eKLR
  • Patrick Kalava Kulamba & another vs Philip Kamosu & Rhoda Ndanu Philip
    (2016) eKLR
  • Patricia Njeri and 3 others vs National Museum of Kenya
    (2004) eKLR
  • Venture (Capital) & Credit Ltd vs Consolidated Bank of Kenya Ltd
    (2006)
  • Madhupaper International Kerr
    (1985) KLR 840
  • JK Industries vs KCB
    (1982-88) KLR 1088
  • Butt vs Rent Restriction Tribunal
    (1983) KLR 417
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 others
    (2003) eKLR
  • Edney Adaka Ismail vs Equity Bank Ltd
    Milimani Case No. 727 of 2012
  • Savings and Loans Ltd vs Susan Wanjiru Muritu
    Nairobi HCC No. 397 of 2002
  • Multiple Hauliers vs Enock Bilindi Musundi and 2 others
    Naivasha High Court Civil Appeal No. 30 of 2020
  • Habo Agencies Ltd vs Wilfred Odhiambo Musingo
    (2015) eKLR
Jurisdiction invoked
Appellate/supervisory jurisdiction of the Environment and Land Court over subordinate court land appeals (Sections 3 and 13 of the ELC Act referenced); Article 159 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act invoked

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, "Ann Kechi Mubichi v Joshua Kiome Mworia [2022] KEELC 401 (KLR)", Case Analysis (2022). Not stated in the judgment (appeal lodged 19.10.2020; memorandum of appeal dated 16.10.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/401/eng@2022-04-27

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