Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment and Land Appeal E006 of 2022· [2023] KEELC 17542 (KLR)

Gitau v Githinji & another

Environment and Land Court
23 May 2023
JKJ G Kemei
1,546 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

#

A Kenyan court gave an appellant a second chance to file his land appeal after his advocate's mistakes, but refused immediate protection for the property.

What this practically means

#

Executive summary

#
This ruling by J G Kemei, J of the Environment and Land Court at Thika determined an omnibus application dated 16/2/2023 by John Michuki Gitau, the appellant in an appeal against the judgment of Hon. J.A Ogonda in Ruiru SPM ELC Civil Suit No E65 of 2021 delivered on 20/1/2022. The appellant sought, among other prayers, leave for Rumba Kinuthia & Co Advocates to come on record, review and setting aside of the Court's ruling of 16/2/2023 striking out the appeal for want of compliance with Order 9 rule 9 of the Civil Procedure Rules, deeming of the appeal as properly filed or enlargement of time to file the memorandum of appeal, stay of execution of the trial judgment, and a temporary injunction over Ruiru/Ruiru East Block 2/2580. The 1st respondent opposed, contending the suit was defective ab initio and that the appellant had not shown cogent reasons to depart from the Court's earlier findings of 16/6/2022 and 16/2/2023. The Court allowed the change of advocates under Order 9 rule 9 and, applying section 79G of the Civil Procedure Act, found the explanation for the delay - that it was attributable to the advocate who filed the struck-out appeal - plausible, holding it would be unjust to hold the applicant to the mistake of counsel. The application partly succeeded: prayers b and e only were allowed, the appellant was to file a fresh appeal within 30 days, with liberty to canvass stay and injunction prayers therein, failing which the leave would lapse automatically. Each party was ordered to bear their own costs as the parties are related.

Key legal issues

#
01

Whether new advocates may come on record after judgment

Holding

Allowed under Order 9 rule 9 of the Civil Procedure Rules

Reasoning

The Court, guided by Order 9 rule 9, answered the question whether the firm of Rumba Kinuthia & Co Advocates should come on record in the affirmative, permitting the change of advocates in place of Lokitano & Co Advocates or Tony Martin Law LLP.

02

Whether time to file the appeal should be enlarged

Holding

Yes; delay attributed to counsel is good and sufficient cause under s 79G

Reasoning

Section 79G requires filing within 30 days unless the appellant shows good and sufficient cause. The Applicant explained the delay was due to the advocate who filed the appeal that was struck out. The Court found the explanation plausible and, in the interest of justice, allowed filing of a fresh appeal within 30 days.

p. 3
03

Whether stay of execution and injunction pending appeal should issue

Holding

Refused at this stage; to be canvassed in the fresh appeal

Reasoning

The Court did not grant the stay of execution of the Ruiru trial judgment or the temporary injunction over Ruiru/Ruiru East Block 2/2580, instead reserving liberty to canvass those prayers in the fresh appeal to be filed within 30 days.

p. 4

Legal principles established

#
  • It would be unjust to hold a litigant to the mistake of counsel where the delay in filing an appeal is attributed to the advocate
  • An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing in time (s 79G Civil Procedure Act)

Court orders

#
  1. 1.Application dated 16/2/2023 allowed in terms of prayers b and e only
  2. 2.Appellant to file a fresh appeal within 30 days of the date of the ruling
  3. 3.Appellant at liberty to canvass prayers for stay of execution and temporary injunction pending appeal in the fresh appeal
  4. 4.Failure to abide by the order to file a fresh appeal, leave granted shall lapse automatically without further orders
  5. 5.Each party to bear their own costs

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticles 59, 159, 165 and 259
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 9 rule 9; Orders 9 and 10

Cases cited (2)

  • Abok James Odera T/A AJ Odera & Associates v John Patrick Machira T/A Machira & Co Advocates
    [2013] eKLR

    Sections 1A and 1B of the Civil Procedure Act (overriding objective)

  • Francis Omondi Odhiambo v Hippolitus Omondi Ochieng
    [2022] eKLR

    That Orders 9 and 10 of the Civil Procedure Rules do not apply to appellate proceedings

On appeal from
Ruiru SPM ELC (Principal Magistrate's Court)
Ruiru SPM ELC Civil Suit No E65 of 2021
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts (Articles 165 and 259 of the Constitution recited; Civil Procedure Act ss 79G, 79B)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (6)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Gitau v Githinji & another", Case Analysis (2023). Environment and Land Appeal E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17542/eng@2023-05-23

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