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ELCDismissedNot stated in the judgment (Notice of Motion dated November 15, 2021)· [2022] KEELC 3634 (KLR)

Hemed v Asena (Environment and Land Miscellaneous Application E049 of 2021) [2022] KEELC 3634 (KLR)

Environment & Land Court
18 July 2022
4,286 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Intended Appellant/Applicant, Faiz Ramadhan Hemed, moved the Environment and Land Court at Mombasa by a Notice of Motion dated November 15, 2021 under Order 50 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, seeking leave to appeal out of time against a ruling of the Chief Magistrate's Court (Mombasa) delivered on September 29, 2021 granting the Respondent temporary injunction over Land Reference Number 7954/1/MN, together with stay of execution and stay of proceedings pending appeal. He attributed the delay to a communication breakdown with his former advocates, asserting he had occupied and developed the suit property as a tenant since the 1980s under a lease from the Estate of Swaleh Nguru. The Respondent, Peris Irungu Asena, the registered proprietor, opposed the application, contending the Applicant knew of the ruling date, that the application was filed 18 days outside the statutory period and was a reaction to intended contempt proceedings. The court framed three issues and applied the test in Paul Musili Wambua v Attorney General: length of delay, reason for delay, chances of success and prejudice. It found the delay approximately 47 days, held the Applicant was aware of the case and was not a 'helpless litigant', and that litigants must follow up their advocates. It further found the appeal's chances slim, the tenancy appearing to be with the Applicant's deceased father, while the Respondent's certificate of title was conclusive under Sections 25 and 26 of the Land Registration Act. The application was dismissed with costs to the Respondent, and the trial court was directed to dispose of the suit within 180 days.

Key legal issues

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01

Whether the Applicant met the threshold for enlargement of time to appeal out of time

Holding

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

Reasoning

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.

p. 6
02

Whether the appeal had chances of success

Holding

The chances of success were slim given the Respondent's title

Reasoning

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.

p. 7
03

Costs of the application

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act and were awarded to the Respondent

Reasoning

The application having been dismissed as unmeritorious, costs followed the event and were awarded to the successful Respondent.

p. 7

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated November 15, 2021 filed by the Applicant be and is hereby dismissed for lack of merit
  2. 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. 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. 4.Costs to be borne by the Applicant and awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 27(1) (proviso)
  • Civil Procedure Rules, 2010Order 50 Rule 5
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 11
  • Land Registration Act, No. 3 of 2012Sections 25 and 26

Cases cited (13)

  • Tana & Athi River Development v Jeremiah Kimigho Mwakio & 3 others
    (2015) eKLR
  • Lucy Bosire v Kehancha Div. Land Dispute Tribunal & 2 Others
    (2013) eKLR
  • Butt v Rent Restriction Tribunal
    (1979) eKLR
  • Chandaria Industries Limited v Sonal Holdings (K) Limited & another
    (2014) eKLR
  • Bank of Africa Kenya Limited v Put Sarajevo General Engineering Co. Limited and 2 others
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
  • Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited
    (2020)
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Limited
  • Mbarak Said Ali & another v Sultan Palace Development Limited
    (2021) eKLR
  • James Wangalwa & another v Agnes Naliaka Chesoto
    (2012) eKLR
  • Global Tours & Travels Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
  • Paul Musili Wambua v Attorney General & 2 others
    [2015] eKLR
  • Allen v Sir Alfred McAlpine & Sons Limited
    (1968) All ER 543
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

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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, "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.