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ELCPartially AllowedEnvironment and Land Miscellaneous Application 12 of 2022· [2022] KEELC 12678 (KLR)

Kokwo v Akokor

Environment and Land Court
28 September 2022
FNFred Nyagaka
2,586 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave a landowner extra time to appeal after a lawyer's communication breakdown, but made him pay costs for causing the delay.

What this practically means

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Executive summary

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The applicant, Solomon Pkiach Kokwo, moved the Environment and Land Court at Kitale by Notice of Motion dated June 21, 2022 under article 159(2)(d) of the Constitution, section 79 of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules, seeking enlargement of time to appeal against the ruling of the Principal Magistrate's Court at Kapenguria delivered on March 8, 2022 in Kapenguria PMC Land Case No 5 of 2020, which dismissed his suit for want of prosecution. He attributed the delay to a communication breakdown between his instructing counsel and counsel who held brief on the ruling date. The respondent opposed, contending the application was an abuse of process, the applicant was indolent, having not prosecuted the suit for two years, and that counsel who held brief had not sworn an affidavit. The court framed two issues: whether the application had merits and who should bear costs. Applying the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC, Nyagaka J held that extension of time is an equitable remedy, not a right, and that the applicant bore the burden of explaining the delay. Finding sworn evidence of the communication breakdown, and noting the ruling was delivered ex parte with no proceedings showing how the delivery date was taken, the court gave the applicant the benefit of the doubt and held the delay of two months and 14 days was not inordinate. The application was allowed with time extended: the appeal to be filed within 14 days, the Record of Appeal within 60 days, and mention for directions within 30 days of service. Although successful, the applicant was ordered to pay the costs of the application as he had occasioned it to be brought.

Key legal issues

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01

Whether the delay of about two months and 14 days in filing the appeal was explained and excusable

Holding

Yes - the communication breakdown between instructing counsel and counsel holding brief sufficiently explained the delay, and the period was not inordinate

Reasoning

The court applied the Salat principles. Counsel swore on oath that counsel holding brief took the ruling but failed to report back, and the instructing counsel, under work pressure, failed to follow up. The ruling was delivered ex parte and the record did not show how the delivery date was taken, so the court gave the applicant the benefit of the doubt. The delay of two months and 14 days was held not inordinate.

p. 4
02

Whether the absence of an affidavit from counsel who held brief was fatal

Holding

No - while such an affidavit would have explained matters more deeply, there was enough evidence on oath of the communication breakdown

Reasoning

The respondent argued that Mr Kaosa, who held brief, should have sworn an affidavit confirming he was instructed and forgot to report back. The court agreed such an affidavit would have helped but found the instructing counsel's sworn account sufficient evidence of the breakdown, and noted the ruling was delivered ex parte.

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Whether the merits of the intended appeal had to be demonstrated

Holding

No - the contention that the appeal lacked merit was a matter for the hearing of the intended appeal, and the draft memorandum was in fact annexed

Reasoning

The respondent contended the applicant did not show the appeal was arguable and that no draft memorandum was annexed. The court held the merits were for consideration during the hearing of the intended appeal, and found the draft memorandum was annexed to the supporting affidavit, rendering the argument lacking in substance.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy, not a right; the applicant bears the burden of explaining the delay to the satisfaction of the court
  • A period of about two months and a fortnight beyond the statutory period was not inordinate delay in the circumstances
  • Where delay is not on the part of the applicant, the orders sought will be freely granted

Court orders

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  1. 1.Time enlarged within which the applicant may file an appeal against the ruling of the Principal Magistrate's Court at Kapenguria read on March 8, 2022
  2. 2.The appeal shall be filed within fourteen (14) days and the Memorandum of Appeal served as prescribed by law
  3. 3.The Record of Appeal shall be filed within sixty (60) days of filing of the appeal and served
  4. 4.The intended appeal shall be fixed for mention for further directions before this court within 30 days of the preparation and service of the Memorandum of Appeal
  5. 5.The applicant shall pay the costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSection 79
  • Civil Procedure RulesOrder 51 rule 1

Cases cited (2)

  • Vishva Stone Suppliers Limited v RSR Stone [2006] Limited
    [2020] eKLR

    A delay of over a year and two months plus three months certified delay was not unreasonably long

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR

    Principles for exercise of discretion to extend time

On appeal from
Principal Magistrate's Court at Kapenguria
Kapenguria PMC Land Case No 5 of 2020
Jurisdiction invoked
Article 159(2)(d) of the Constitution, section 79 of the Civil Procedure Act (Cap 21) and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kokwo v Akokor", Case Analysis (2022). Environment and Land Miscellaneous Application 12 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12678/eng@2022-09-28

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