Hemed v Asena (Environment and Land Miscellaneous Application E049 of 2021) [2022] KEELC 3634 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to extend time to appeal because the litigant didn't follow up with his advocate — a registered land title proved decisive.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant met the threshold for enlargement of time to appeal out of time
He did not; the delay of approximately 47 days was not adequately explained and the Applicant was not a helpless litigant but an engaged party aware of the case
The court applied the four Wambua factors. The Applicant knew of the suit and the ruling date, attended out-of-court settlement meetings personally, and his former advocate was served with the ruling, order, letter and email without response. The uncontested affidavit of Mr Asena established the Applicant's awareness. The duty to follow up with counsel rested on the litigant himself, so the advocate's mistake could not be visited on the client here.
Whether the appeal had chances of success
The chances of success were slim given the Respondent's title
The tenancy on which the Applicant relied appeared to be between Swaleh Nguru and the Applicant's deceased father, not the Applicant. Against that, the Respondent held a certificate of title that is conclusive under Sections 25 and 26 of the Land Registration Act, and the Applicant pleaded no fraud or illegality in its acquisition.
Costs of the application
Costs follow the event under Section 27(1) of the Civil Procedure Act and were awarded to the Respondent
The application having been dismissed as unmeritorious, costs followed the event and were awarded to the successful Respondent.
Legal principles established
#- In deciding whether to extend time to file an appeal, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent
- A litigant has a duty to pursue his advocate on record to find out the position on the litigation; the mistake of an advocate is not automatically excused
- A certificate of title is conclusive evidence of proprietorship unless the title was acquired fraudulently, illegally or unprocedurally (Sections 25 and 26, Land Registration Act)
Court orders
#- 1.The Notice of Motion application dated November 15, 2021 filed by the Applicant be and is hereby dismissed for lack of merit
- 2.The matter – Chief Magistrate Court ELC No. 095 of 2021 to be heard and disposed of within the next one hundred and eighty (180) days
- 3.There be a mention before the Chief Magistrate's Court in August 2022 for Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010
- 4.Costs to be borne by the Applicant and awarded to the Respondent
- On appeal from
- Chief Magistrate's Court (Mombasa)
- Chief Magistrate Court ELC No. 095 of 2021
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act, 2010; Order 50 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hemed v Asena (Environment and Land Miscellaneous Application E049 of 2021) [2022] KEELC 3634 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated November 15, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3634/eng@2022-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.