Rotich v Cherono (The administrator of the Estate of Henry Cherono)
The bottom line
#The Environment and Land Court refused to reinstate an appeal dismissed for delay, confirming that Kenyan litigants must personally follow up their cases, not just blame their advocates.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming firm of advocates was properly on record
The firm of Kingori & Associates was deemed properly on record since a consent with the outgoing counsel was filed and no prejudice was demonstrated.
Order 9 Rule 9 requires leave of court or a consent between incoming and outgoing advocates for a change of advocate after judgment. The objection was raised at the first hearing, counsel indicated a consent could be filed, and it was filed. The respondent could not resile from that without demonstrating prejudice.
Whether the dismissal of the appeal for want of prosecution should be set aside and the appeal reinstated
The application was refused; the applicant was indolent and the delay of over three years was unexplained.
The discretion to set aside dismissal must be exercised judiciously. The applicant blamed only his former advocate, took no steps to follow up the appeal, and learned of the dismissal only when served with an eviction order. The decree had been executed, so reinstatement would prejudice the respondent.
Whether stay of execution should be granted
Stay was refused because execution had already been carried out on 7th March 2023 and the application was overtaken by events.
The respondent deposed that the decree of the lower court had been executed and the applicant evicted from the suit premises. Reinstating the appeal and stay would therefore prejudice the respondent, and the court found no material justifying the exercise of its discretion in the applicant's favour.
Legal principles established
#- A litigant cannot escape dismissal for want of prosecution by blaming counsel; the litigant must personally follow up the case.
- Test for reinstatement of a suit dismissed for want of prosecution: prolonged inexcusable delay, whether justice can still be done, and prejudice.
Court orders
#- 1.The application dated 27th February 2023 is dismissed with costs to the Respondent.
- Jurisdiction invoked
- Sections 3A and 80 of the Civil Procedure Act, Cap 21; Order 40 Rule 1 and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rotich v Cherono (The administrator of the Estate of Henry Cherono)", Case Analysis (2023). Environment and Land Appeal 19 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18480/eng@2023-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.