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ELCAllowedNot stated in judgment· [2022] KEELC 1519 (KLR)

Lydia Aoko Ojueke (suing as the personal representative of the estate of Damian Okumu Oloo) v Michael Nyamea Ogutu & 3 others [2022] KEELC 1519 (KLR)

Environment and Land Court
10 February 2022
AKA. Y. Koross
1,245 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed an appeal filed years late because the delay was reasonably explained, showing courts will prioritize justice over strict deadlines.

What this practically means

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Executive summary

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This is a ruling on the appellant's Notice of Motion dated 21/09/2020, brought under Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, seeking extension of time to lodge an appeal against a subordinate court decision delivered on 6/01/2019 without notice to the parties. The appellant explained that upon learning of the judgment she promptly filed a leave application but mistakenly in the wrong court, and that further delay flowed from failure to obtain typed proceedings timeously. The respondents did not respond to the motion despite service, but the court determined the motion on its merits. Applying the principles in Nicholas Kiptoo Arap Korir Salat v IEBC and invoking Sections 79G and 95 of the Civil Procedure Act and Section 16A of the Environment and Land Court Act, the court found the reasons for the delay reasonable, plausible and sufficient. It noted counsel's mistakes should not be visited on the client, that the memorandum of appeal disclosed an arguable case, and that the respondents, who never participated in the lower court proceedings, would suffer no prejudice. The court granted leave to appeal out of time, deemed the record of appeal dated 26/06/2019 duly filed, directed a mention for directions on 23/02/2022, and awarded costs to the respondents.

Key legal issues

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01

Whether the appellant satisfied the criteria for extension of time to file an appeal out of time

Holding

The appellant met the criteria; the delay was reasonably explained by non-notification of the judgment, delay in obtaining proceedings, and counsel's mistaken filing in the wrong court.

Reasoning

The court applied the Salat principles. The appellant explained that the lower court delivered judgment without notifying parties, that typed proceedings were delayed, and that counsel mistakenly filed the leave application in the wrong court. The court found these reasons reasonable, plausible and sufficient, found an arguable appeal, and held the unparticipating respondents would suffer no prejudice.

p. 2

Legal principles established

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  • An applicant seeking extension of time must demonstrate good and sufficient cause for the delay, applying the Salat principles
  • Mistakes of advocates should not be visited upon their clients

Court orders

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  1. 1.The appellant is granted leave to appeal out of time in terms of prayer 1 of the motion dated 28/08/2019
  2. 2.The record of appeal dated 26/06/2019 be deemed as duly filed
  3. 3.Case to be mentioned for directions on 23/02/2022
  4. 4.Costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 79G, 95
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2); Order 51 Rule 1
  • Environment and Land Court ActSection 16A

Cases cited (5)

  • Kennedy Ochieng Otieno & another v Elisaphan Omolo Nyasita
    [2019] eKLR
  • Ngoso General Contractors v Jacob Gachunge
    [2005] eKLR
  • Kenya Power and Lighting Company Limited v IO suing through GIO
    [2020] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Patriotic Guards Limited v James Kipchirchir Sambu
    [2018] eKLR
On appeal from
Subordinate court
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act and Section 16A of the Environment and Land Court Act

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, "Lydia Aoko Ojueke (suing as the personal representative of the estate of Damian Okumu Oloo) v Michael Nyamea Ogutu & 3 others [2022] KEELC 1519 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1519/eng@2022-02-10

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