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ELCAllowedNot stated in the judgment (Notice of Motion dated 1st November 2023, arising from an appeal against Oyugis SPM's Court Environment and Land Case No. 70 of 2018)· [2024] KEELC 627 (KLR)

Agenga v Alango (Environment and Land Appeal E008 of 2023) [2024] KEELC 627 (KLR)

High Court of Kenya
13 February 2024
GOGeorge M.A Ong'ondo
1,142 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 can still let you appeal after the deadline if your lawyer's mistake, not your neglect, caused the delay.

What this practically means

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Executive summary

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By a Notice of Motion dated 1st November 2023 under sections 1A, 1B, 3, 3A and 79G of the Civil Procedure Act and Article 159(2)(d) of the Constitution, the applicant, Phoebe Waria Alango, sought leave to file a cross-appeal out of time against a judgment delivered on 18th January 2023 by the Oyugis Senior Magistrate's Court in Environment and Land Case No. 70 of 2018. She explained that she was absent when judgment was delivered, that her then advocates, M/s Neto and Company, did not inform her of the judgment in time through inadvertence, and that she changed advocates by a consent dated 24th June 2023, by which time the period for appealing had elapsed. The appellant/respondent, Francisca Akinyi Agenga, opposed the application in a replying affidavit and written submissions, contending that the applicant's advocate was present at the delivery of judgment, that the applicant was aware of the judgment, and that the failure to appeal within the statutory period was deliberate, with no steps taken towards filing an appeal. The court identified a single issue: whether the application was meritorious. Applying section 79G and the factors in Leo Sila Mutiso v Rose Wangari Mwangi, and holding that mistake of counsel cannot be visited on a client, the court found the delay satisfactorily explained and the respondent would suffer no prejudice, grounding the decision in the applicant's constitutional rights of access to justice and fair hearing. The application was allowed in terms of prayers 2, 3 and 4, with the applicant to file and serve the record of the cross-appeal within seven days, and costs of the application to be borne by the applicant.

Key legal issues

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01

Whether the applicant demonstrated good and sufficient cause for the delay in filing a cross-appeal out of time

Holding

Yes. The applicant's absence at judgment delivery, the failure of her previous counsel to notify her, and the subsequent change of advocates constituted a plausible and satisfactory explanation for the delay.

Reasoning

Section 79G of the Civil Procedure Act permits admission of an appeal out of time on good and sufficient cause. The court applied the factors in Leo Sila Mutiso v Rose Wangari Mwangi, namely the reasons for delay and prejudice to the respondent. Mistake of counsel cannot be visited on the client, and the applicant's rights of access to justice and fair hearing under Articles 48, 50(1) and 25(c) of the Constitution supported granting leave.

p. 3

Legal principles established

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  • Mistake of counsel cannot be visited on a client
  • An appeal under section 79G may be admitted out of time on good and sufficient cause

Court orders

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  1. 1.Leave granted to the applicant to file a cross-appeal out of time (prayer 2)
  2. 2.The draft memorandum of cross-appeal deemed duly filed and served upon payment of requisite court fees (prayer 3)
  3. 3.The applicant to file and serve the record of the cross-appeal within seven (7) days (prayer 4)
  4. 4.Costs of the application to be borne by the applicant

Authorities

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Legislation

  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B, 3, 3A, 79G
  • Constitution of Kenya, 2010Articles 48, 50(1), 25(c), 159(2)(d)
  • Civil Procedure Rules, 2010Order 50

Cases cited (7)

  • Diamond Trust Bank (K) Ltd-vs-Galaxy Ventures (K) Ltd
    (2020) KLR
  • Aviation Cargo Support Ltd-vs-Mark Freight Services Ltd
    (2014) eKLR
  • Shabir Din-vs-Ram Parkash Anand
    (1955) EACA Volume 22 at page 48
  • Leo Sila Mutiso-vs-Rose Wangari Mwangi
    (1999) 2 EA 231
  • Andrew Kiplangat Chemaringo-vs-Paul Kipkorir Kibet
    (2018) eKLR
  • Butt-vs-Rent Restriction Tribunal
    (1979) KLR
  • Halsbury’s Laws of England 5th Edition 2010 Volume 61
    page 639
On appeal from
Oyugis SPM's Court (Environment and Land)
70 of 2018
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 79G of the Civil Procedure Act (Cap 21) and Article 159(2)(d) of the Constitution of Kenya, 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, "Agenga v Alango (Environment and Land Appeal E008 of 2023) [2024] KEELC 627 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 1st November 2023, arising from an appeal against Oyugis SPM's Court Environment and Land Case No. 70 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/627/eng@2024-02-13

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