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ELCDismissedEnvironment and Land Miscellaneous Application E004 of 2023· [2023] KEELC 18515 (KLR)

Rugiri v M'Mukiri (Suing as the legal representative of the Estate of M'Mukiri M'I Bunge Karigi alias M'Mukiri Ibunge)

Environment and Land Court
5 July 2023
3,639 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to excuse a seven-month appeal delay, ruling that an advocate's ignorance of procedure is not a valid reason.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (C K Yano, J) determined a notice of motion dated 27th January 2023 by which Gladys Kinya Rugiri, the applicant, sought leave to file an appeal out of time against the judgment of the lower court (J. Irura, Mrs) delivered on 17th June 2022 in a land dispute with Benedict Guantai M'Mukiri, the respondent, suing as legal representative of the Estate of M'Mukiri M'I Bunge Karigi. The application was anchored on sections 79G and 95 of the Civil Procedure Act and Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules. The applicant's counsel explained that she had filed a notice of appeal and an application for stay in the lower court, mistakenly believing that a memorandum of appeal was not required, and urged that her mistake should not be visited on the client, invoking Article 159(2)(d) of the Constitution. The respondent opposed, contending that the delay of over seven months was inordinate, intentional and inexcusable, that no memorandum of appeal had been filed, and that the intended appeal had no chances of success. The court identified the sole issue as whether leave to appeal out of time should be granted. Applying section 79G and the established factors for extension of time, the court held that ignorance of the law is no defence, that the advocate's admitted ineptitude was not a plausible reason, that the delay was inordinate and inexcusable, and that the application was an afterthought which would greatly prejudice the respondent. The court also cautioned that Article 159 is not a panacea for all legal problems. The notice of motion was dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicant demonstrated good and sufficient cause under the proviso to section 79G of the Civil Procedure Act to warrant extension of time

Holding

The application was dismissed. The only reason given was the advocate's ignorance of the correct procedure (filing a notice of appeal instead of a memorandum of appeal), which the court held was not plausible; the delay of over seven months was inordinate and inexcusable and the application was an afterthought.

Reasoning

The court applied section 79G and the established factors: explanation for the delay, arguability of the intended appeal, and prejudice to the respondent. Counsel had admitted ineptitude in not knowing the procedure for appeals from subordinate courts to the High Court. The court held ignorance of the law is no defence, the delay was over seven months, and the respondent would be greatly prejudiced if the extension were granted.

p. 7

Legal principles established

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  • Extension of time is a discretionary equitable remedy; the applicant must show a plausible reason for the delay, and ignorance of the law by an advocate is not a sufficient cause
  • Article 159(2)(d) on procedural technicalities is not a panacea for all legal problems

Court orders

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  1. 1.The notice of motion dated 27th January 2023 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 50 Rule 6
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Actsection 1B
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 79G
  • Civil Procedure Actsection 95
  • Constitution of Kenya 2010Article 159(2)(d)

Cases cited (12)

  • Dilpack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR

    Inaction on the part of an advocate is not sufficient reason for extension of time

  • Nicholas Kiptoo Arap Korir Salat v IEBC and 7 others
    2014 eKLR

    Principles governing exercise of discretion to extend time

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997

    Principles on extension of time

  • Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Company Limited
    (2015) eKLR

    Principles on extension of time

  • CFC Stanbic Limited v John Mana Githaiga & another
    (2013) eKLR

    Mistake of counsel should not be visited on the client

  • Patrick Maina Mwangi v Waweru Peter
    (2015) eKLR

    Cited Mwai v Murai No. 4 (1982) KLR on mistakes of counsel

  • Gerald M'limbine v Joseph Kangangi
    (2008) eKLR

    Application incompetent where no substantive appeal was first filed

  • Edith Gichungu Koine v Stephen Njagi Thoithi
    (2014) eKLR

    Extension of time is an equitable remedy for a deserving applicant

  • First American Bank of Kenya Ltd v Gulab P. Shah & 2 Others
    Nairobi (Milimani) HCCC No. 2255 of 2000 (2002) 1 EA 65

    Factors for considering extension of time: explanation for delay, arguability, compensatable prejudice

  • Republic v Public Administrative Review Board & Another
    (2019) eKLR

    Court entitled to consider the nature of the process and whether there is reasonable basis for extension

  • Abdul Azizi Ngoma v Mungao Mathayo
    (1976) Kenya LR 61, 62

    Discretion to extend time arises only after sufficient reason is established

  • Karny Zaharya & Another v Shalom Levi
    C. Appl. No. 80 of 2018

    Considerations for extension of time including length of and reason for delay, prejudice, conduct and prospects

On appeal from
Lower court (subordinate court)
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act, Cap 21; Order 50 Rule 6 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, "Rugiri v M'Mukiri (Suing as the legal representative of the Estate of M'Mukiri M'I Bunge Karigi alias M'Mukiri Ibunge)", Case Analysis (2023). Environment and Land Miscellaneous Application E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18515/eng@2023-07-05

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