Bakari Shaban Gakere v Mwana Idd Guchu & 3 others [2022] KEELC 1462 (KLR)
The bottom line
#A Kenyan land court gave a delayed appellant 30 more days to appeal, but let the current landholder keep possession while doing so.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant's Further Affidavit should be expunged
- 2.Whether the Applicant made an application for review
- 3.Whether the Law Firm of Mutundu Wallace Advocates was properly on record
- 4.Whether time for lodging appeal should be extended
- 5.Whether status quo should be maintained
- 6.Who should pay costs
Key legal issues
#Expungement of the Further Affidavit
The affidavit was not expunged; the defects were of form, not substance
The Further Affidavit lacked the deponent's description, place of abode and postal address as required by Order 19 Rule 4, and was sworn abroad before a notary. However, Order 19 Rule 7 permits receipt of affidavits despite irregularities of form, and Article 159(2) of the Constitution favours substantive justice. The notary duly signed and the Applicant's signature was not disputed, so the affidavit was admitted.
Alleged bar under Order 45(2) by prior application for review
No application for review was ever filed, so Order 45(2) was not offended
The 1st Defendant asserted the Applicant had applied for review, which would bar the present application under Order 45(2). The Court perused the file and pleadings and found no review application on record; paragraph 9 of the judgment referred only to an application for adjournment. The allegation was baseless.
Whether Mutundu Wallace Advocates was properly on record
Yes - although the consent changing advocates was not endorsed by the Court, the non-compliance was procedural, not fundamental, and did not cause prejudice
Order 9 Rule 9 requires change of advocates by consent or court order. The consent was filed and served but not endorsed as required. Relying on Tobias M. Wafubwa v Ben Butali and Boniface Kiragu Waweru v James K. Mulinge, the Court held the failure did not undermine jurisdiction or cause prejudice, so Article 159 and the overriding objective cured the defect.
Extension of time to lodge appeal
The delay, though inordinate, was excusable; conditional leave of 30 days granted
Applying the Salat principles and the inordinate delay litmus test, the Court found the Applicant's counsel stopped attending the matter after 22nd February 2021 and the Applicant was under a duty to follow up. However, the Applicant was abroad, promptly filed a change of advocates, and risks eviction in an emotive land matter. No draft memorandum was annexed, but arguability may be gauged from other supportive evidence. No prejudice was shown since neither party was in occupation and costs could compensate.
Status quo
Status quo ordered with the land remaining in the 1st Defendant's possession, with a bar on disposal or charging pending the intended appeal
Relying on Shimmers Plaza and Mugah v Kunga, status quo preserves the situation as it exists when the order is made. Distinguishing status quo from injunction per Republic v Chairperson BPRT Exparte Baobab Beach Resort, the Court found from the Ministry of Agriculture letter that the 1st Defendant had begun executing the decree and was in possession; preserving that position did not set aside the judgment.
Costs
Each party to bear its own costs
Although costs normally follow the event under Section 27 of the Civil Procedure Act, the application was occasioned by the Applicant's own conduct. The appeal would keep litigation hanging over the Defendants and deny the 1st Defendant enjoyment of the judgment, so ordering the Defendants to pay costs would be unfair.
Legal principles established
#- Extension of time is an equitable remedy available to a deserving party at the Court's discretion, and the applicant bears the burden of explaining the delay and showing absence of prejudice
- While mistakes of an advocate should not be visited on a client, the indolence of a litigant may not be pardoned
- An order for status quo is an ancillary preservation order distinct from an injunction, and does not depend on proof of a right or prima facie case
- Procedural irregularities in affidavits may be cured under Order 19 Rule 7 and Article 159(2) of the Constitution where they do not go to substance
Court orders
#- 1.The time for lodging and serving the Notice of Appeal by the Applicant be and is extended for a period of 30 Days, from the date hereof; in default, the leave granted will lapse automatically
- 2.Status quo be maintained to the extent that the suit land shall remain in possession of the 1st Defendant pending the filing of the intended appeal, but the 1st Defendant should not dispose it off or charge the same until the intended Appeal is filed
- 3.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act; Section 95 of the Civil Procedure Act and Order 50 Rule 5 of the Civil Procedure Rules
Relief refused
#Costs of the application
The circumstances occasioning the application were attributable to the Applicant; it would be unfair to burden the Defendants with costs
Status quo restoring the land to the Applicant
The Court concluded the land is currently in the 1st Defendant's possession, so status quo means it remains in his possession
Costs
Each party shall bear its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
i. The time for lodging and serving the Notice of Appeal by the Applicant be and is extended for a period of 30 Days, from the date hereof. In default, the leave granted will lapse automatically.
ii. Status quo be maintained to the extent that the suit land shall remain in possession of the 1 st Defendant pending the filing of the intended appeal. However, the 1st Defendant should not dispose it off or charge the same until the intended Appeal is filed.
iii. Each party shall bear its own costs.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
Whereas it is a general principle that mistakes of an advocate should not be visited on his client, the indolence of a litigant may not be pardoned.
the former is simply an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof. It does not depend on proof of right or prima facie case.
Issues in the judgment
#The judgment is dated 17th February 2022 but recites that the Supporting Affidavit was 'sworn on the 5th August, 2022', an apparently impossible date for a document supporting an application decided in 2022
Internal inconsistency: the judgment states the 1st Defendant has taken possession and is executing the decree, while the Court elsewhere concludes that none of the parties is in occupation
The citation for Vishva Stone Suppliers appears garbled: '[2006] limited [2020] eKLR'
The Applicant's Grounds refer to appealing the Order of 22nd February 2021 dismissing the Plaintiff's case, yet the judgment records dismissal on 5th July 2021; the Court treats 22nd February 2021 as the order that 'technically closed the Plaintiff's case'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakari Shaban Gakere v Mwana Idd Guchu & 3 others [2022] KEELC 1462 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1462/eng@2022-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.