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Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Appeal 19 of 2019· [2023] KEELC 18480 (KLR)

Rotich v Cherono (The administrator of the Estate of Henry Cherono)

Environment and Land Court
4 July 2023
1,668 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicant, Wilson Rotich, moved the Environment and Land Court at Eldoret by an application dated 27th February 2023, brought under sections 3A and 80 of the Civil Procedure Act and Order 40 Rule 1 and Order 45 Rule 1 of the Civil Procedure Rules. He sought leave to change advocates from M.K Chebii to Kingori & Associates, restoration of the status quo ante, reinstatement of stay of execution orders granted on 1st August 2019, and review and setting aside of the order of 28th October 2022 dismissing his appeal for want of prosecution, with the appeal reinstated for priority hearing. He blamed his former advocates for the dismissal, deposing that he learned of it only on 24th February 2023 when served with an eviction order. The respondent opposed, deposing that the applicant went to sleep after obtaining stay, that execution was carried out on 7th March 2023, and that the applicant had colluded with purported tenants to file a BPRT reference. The court framed three issues: whether the incoming firm was properly on record; whether the dismissal order should be set aside; and whether stay should issue. On the first, the court deemed Kingori & Associates properly on record since a consent with the outgoing counsel had been filed and no prejudice was shown. On reinstatement, applying Boniface Kamau Njoroge and Savings and Loans, the court held the applicant indolent: the memorandum of appeal was filed in June 2019, proceedings were ready by December 2020, yet no record of appeal was filed for over three years, and the delay was unexplained. The decree had been executed, so reinstatement would prejudice the respondent. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the incoming firm of advocates was properly on record

Holding

The firm of Kingori & Associates was deemed properly on record since a consent with the outgoing counsel was filed and no prejudice was demonstrated.

Reasoning

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.

p. 2
02

Whether the dismissal of the appeal for want of prosecution should be set aside and the appeal reinstated

Holding

The application was refused; the applicant was indolent and the delay of over three years was unexplained.

Reasoning

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.

p. 3
03

Whether stay of execution should be granted

Holding

Stay was refused because execution had already been carried out on 7th March 2023 and the application was overtaken by events.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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

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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, "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.