Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedApplication dated 19.10.2021 (arising from an appeal against a decree passed on 13.12.2018)· [2022] KEELC 1970 (KLR)

Wilson Kimtai & 3 others v Jane Nkatha Kithinji (Suing as legal representative of the estate of Japhet Ktihinji Mwirebua – Deceased) & 5 others [2022] KEELC 1970 (KLR)

Environment and Land Court
26 January 2022
1,576 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court refused to reinstate an appeal dismissed for missed deadlines, ruling unexplained delay by lawyers is not a valid excuse.

What this practically means

#

Executive summary

#
The Environment and Land Court at Meru (C.K. Nzili, ELC Judge) dismissed the appellants' application dated 19.10.2021 seeking, under Sections 3, 3A and 63E of the Civil Procedure Act and Order 50 rule 1, the setting aside of orders made on 3.3.2021 and reinstatement of their appeal against a decree passed on 13.12.2018. The appeal had a history of chronic non-compliance: the record of appeal was never filed despite successive extensions, and the appeal had already been dismissed twice, with two prior reinstatement applications (dated 10.12.2019 and 26.6.2020) allowed on terms. The order of 3.3.2021 required the appeal to be prosecuted within five months, expiring on 3.8.2021. The appellants failed to comply, and the only explanation offered was that the court was bereaved and subsequently on transfer - assertions the court found unsubstantiated, noting there is never a vacuum in courts and a duty judge was always available. The court held that sheer inaction by counsel is not an excusable mistake, that Sections 3, 3A of the Civil Procedure Act and Article 159 of the Constitution are not a panacea for breaches of procedure, and that a two and a half months unexplained delay does not constitute sufficient cause to restore the appeal. The application was dismissed with costs to the respondents.

Key legal issues

#
01

Sufficient cause for setting aside self-executing dismissal orders

Holding

The applicants failed to demonstrate sufficient cause; the court's bereavement/transfer was unsubstantiated and no application for enlargement of time was made before the deadline elapsed

Reasoning

The court traced the litany of non-compliance: the record of appeal was never filed despite multiple extensions, the appeal had been dismissed twice before, and two prior reinstatement applications were allowed on terms. The applicants knew the five-month deadline expired on 3.8.2021 but took no remedial action, fixing a mention for 13.10.2021. The claimed bereavement and transfer were not evidenced, and a duty judge was always available during vacation.

p. 3
02

Inordinate and unexplained delay

Holding

A two and a half months delay, unexplained, does not amount to sufficient cause for restoring the appeal

Reasoning

The court applied Ivita v Kyumba: prolonged and inexcusable delay defeats restoration unless justice can still be done without prejudice. The applicants did not account for how they used the five months granted, offered no explanation for the period between 3.3.2021 and 6.5.2021, and filed the application only after the deadline had lapsed, prompted by the court.

p. 2
03

Court's power to enlarge time under Section 95 and Order 50 rule 1

Holding

The power to enlarge time even after expiry exists, but requires an application made without inordinate unexplained delay

Reasoning

Although Order 50 rule 1 permits enlargement even where the application is made after expiration of time, and Section 95 of the Civil Procedure Act confers that power, the court must be satisfied there is no inordinate, unexplained delay. Here the delay was unexplained, so the power would not be exercised.

p. 3

Legal principles established

#
  • Sheer inaction by counsel does not constitute an excusable mistake
  • Sections 3, 3A of the Civil Procedure Act and Article 159 of the Constitution cannot cure every instance of breach of procedure and court directives
  • There must be a basis for restoring a dismissed appeal
  • The test for reinstatement after prolonged delay is whether justice can still be done despite the delay and whether the respondent would suffer prejudice (Ivita v Kyumba)

Court orders

#
  1. 1.The application dated 19.10.2021 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure ActSections 3, 3A, 63E, 95
  • Civil Procedure RulesOrder 50 rule 1; Order 42 rule 21
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Rajesh Rughani –vs- Fifty Investments Ltd & Another
    [2005] eKLR
  • Raila Odinga & 5 Others –vs- IEBC & 3 Others
    [2013] eKLR
  • Nicholas Kiptoo Arap Korir Salat –vs- IEBC & 7 Others
    [2014] eKLR
  • Habo Agencies Ltd –vs- Wilfred Odhiambo Musingo
    [2020] eKLR
  • Ivita –vs- Kyumba
    [1975] C.A 441
On appeal from
null
null
Jurisdiction invoked
Sections 3, 3A and 63E of the Civil Procedure Act and Order 50 rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wilson Kimtai & 3 others v Jane Nkatha Kithinji (Suing as legal representative of the estate of Japhet Ktihinji Mwirebua – Deceased) & 5 others [2022] KEELC 1970 (KLR)", Case Analysis (2022). Application dated 19.10.2021 (arising from an appeal against a decree passed on 13.12.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1970/eng@2022-01-26

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