Githinji v Nduati
The bottom line
#A Kenyan court refused to revive a land appeal dismissed for delay, ruling that vague claims of a lawyer's illness are not enough.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant made out a case for reinstatement of his appeal dismissed for want of prosecution
The application was dismissed; the appellant failed to demonstrate sufficient cause for the non-compliance, showing no medical evidence of his advocate's incapacity during the relevant period and no diligence in following up the appeal.
The appellant attributed non-compliance to his advocate's illness, but the medical evidence (a 2015 report, 2019 prescriptions, unexplained laboratory results) did not cover the period between November 6, 2019 and September 2020. There were no 2020 medical records. The appellant also never communicated with the court or followed up despite prior indulgences, amounting to unreasonable delay in bringing the application.
Whether the appeal had chances of success justifying reinstatement
The court found no serious issue to be tried: the appellant conceded selling land he had no capacity to sell, and the trial court's options (transfer or pay market value) were not grievous enough to warrant an appeal.
The record showed the appellant sold half an acre from Parcel 253, registered in his late father's name, received the full purchase price, and could not transfer. The trial court gave him the option of succession proceedings and transfer, or paying Kshs. 500,000/= market value. The court held the appellant could not keep both the land and the money, so the appeal lacked merit.
Costs of the application
Costs awarded to the respondent as the successful party, no good reason shown to depart from the general rule.
Applying the proviso to Section 27 of the Civil Procedure Act and the Hussein Janmohamed principle, costs follow the event. The court found no good reason why the successful party should not be awarded costs of the application.
Legal principles established
#- Costs follow the event; a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise.
Court orders
#- 1.The notice of motion dated September 9, 2020 seeking reinstatement of the appeal dismissed on December 17, 2019 is dismissed.
- 2.Costs of the application awarded to the respondent.
- On appeal from
- Chief Magistrate's Court at Engineer (Engineer PM ELC No 22 of 2017)
- Engineer PM ELC No 22 of 2017
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21), Order 42 Rule 21 and Order 51 Rule 1 of the Civil Procedure Rules, Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githinji v Nduati", Case Analysis (2023). Environment and Land Appeal 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18620/eng@2023-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.