Ann Kechi Mubichi v Joshua Kiome Mworia [2022] KEELC 401 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the two applications were properly before the court
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
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.
Whether the order of 25.10.2021 dismissing the appeal should be set aside
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
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.
Whether temporary injunction and inhibition orders pending appeal were deserved
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
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.
Whether the appellant's blame of her former advocates justified reinstatement
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
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.
Legal principles established
#- 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
#- 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.The orders made on 25.10.2021 dismissing the appeal are set aside
- 3.Leave extended for the appellant to file and serve the record of appeal within 7 days from the date of the ruling
- 4.Throw costs of Kshs. 15,000 to be paid to the respondent within 7 days
- 5.The firm of Mwirigi Kaburu & Co Advocates to regularize their appearance within 3 days
- 6.Appeal to be listed for hearing within 6 months otherwise it shall stand dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.