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ELCPartially AllowedEnvironment and Land Miscellaneous Application E031 of 2023· [2023] KEELC 20492 (KLR)

Mutua v Mwangangi

Environment and Land Court
9 October 2023
COChristine Ochieng
1,920 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 allowed a landowner to appeal nine days late because her advocate's clerk made an honest mistake, but she still paid the other side's costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (CA Ochieng, J, 9 October 2023) determined Paschalia Mutua's Notice of Motion dated 23 March 2023 in Miscellaneous Application E031 of 2023. The Applicant, who had lost in ELC No. 128 of 2019 before Hon. M.A Otindo (judgment delivered 14 February 2023), sought leave for B.M Mung'ata & Co. Advocates to come on record post-judgment, leave to file a Memorandum of Appeal out of time (nine days late), and admission of the annexed Memorandum of Appeal upon payment of filing fees. The Respondent opposed, alleging laches, shambolic reasons, and that the clerk said to have caused the delay had not sworn an affidavit. The court framed two issues: change of advocate and extension of time. On the first, it held that Order 9 Rule 9(a) requires a post-judgment incoming firm to seek leave, which had been done, and allowed the change. On the second, applying Section 79G of the Civil Procedure Act and the Salat extension-of-time principles, and guided by the Court of Appeal's Sokoro Savings decision, it found the clerk's inadvertence a plausible explanation for a short, non-inordinate delay, noted the application was brought promptly after detection of the error, and found no demonstrated prejudice to the Respondent. The application was allowed in full: leave granted to come on record, fourteen days granted to file and serve the Memorandum of Appeal, but costs of the application were awarded to the Respondent.

Key legal issues

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01

Change of advocate after judgment

Holding

The incoming firm was properly granted leave to come on record for the Applicant.

Reasoning

Order 9 Rule 9 requires a change of advocate after judgment to be effected only by court order or consent. The incoming firm had itself sought leave, satisfying the rule, and the court allowed it despite the Respondent's objection that the firm was not properly on record.

02

Extension of time to file appeal out of time

Holding

Leave granted; the nine-day delay was explained by inadvertent human error, was not inordinate, and no prejudice was shown.

Reasoning

Section 79G requires good and sufficient cause. Applying the Salat principles, the court found the clerk's inadvertence a plausible explanation, the application brought without undue delay, and no prejudice demonstrated by the Respondent. Filing an appeal is a litigant's constitutional right where sufficient cause is shown.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy available to a deserving party at the court's discretion, and the applicant bears the burden of laying a basis to the satisfaction of the court.
  • A law firm seeking to come on record for a party post-judgment must seek leave of court under Order 9 Rule 9(a) of the Civil Procedure Rules.
  • A short delay caused by an advocate's clerk's inadvertence, promptly remedied, constitutes good and sufficient cause under Section 79G of the Civil Procedure Act.

Court orders

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  1. 1.The firm of B.M Mung'ata & Co. Advocates allowed to come on record for the Applicant.
  2. 2.The Applicant be and is hereby granted leave of fourteen (14) days to file and serve the Memorandum of Appeal.
  3. 3.The Costs of this Application is awarded to the Respondent.

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 9 Rule 9; Order 9 Rule 9(a)

Cases cited (12)

  • Ngitimbe Hudson Nyanumba v Thomas Ongondo
    (2018) eKLR
  • S.K Tarwadi v Veronica Muehlemann
    [2019] eKLR
  • Belinda Murai & Others v Amos Wainaina
    (1978)
  • Itute Ngui & Another v Isumail Mwakavi Mwendwa
    Civil Application No. Nai. 166 of 1997
  • APA Insurance Limited v Michael Kinyanjui Muturi
    (2016) eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR

    Principles governing exercise of discretion in applications for extension of time.

  • James Ndonyu Njogu v Muriuki Macharia
    (2020) eKLR
  • Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi
    (2012) eKLR
  • Monica Moraa v Kenindia Assurance Co. Ltd
    (2010) eKLR
  • Mombasa County Government v Kenya Ferry Services & Another
    (2019) eKLR
  • Wangechi Gitonga & 3 Others v IEBC and 17 others
  • Sokoro Savings and Credit Co-operative Society Ltd v Mwamburi
    (Civil Application E032 of 2022) [2023] KECA 381 (KLR)

    That a short delay attributable to the advocate is not inordinate and the applicant cannot be blamed for it.

On appeal from
Magistrates' Court (subordinate court)
ELC No. 128 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Order 9 Rule 9 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, "Mutua v Mwangangi", Case Analysis (2023). Environment and Land Miscellaneous Application E031 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20492/eng@2023-10-09

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