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ELCDismissedNot stated in judgment· [2024] KEELC 1264 (KLR)

Kuri v Minyori (Environment and Land Appeal E100 of 2021) [2024] KEELC 1264 (KLR)

High Court of Kenya at Meru
6 March 2024
1,501 words in judgment
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The bottom line

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Kenya's High Court at Meru refused to reinstate an appeal struck out for delay, ruling that a lawyer's inaction is not an excusable mistake.

What this practically means

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Executive summary

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This judgment disposes of an application to reinstate an appeal which the High Court at Meru had struck out on 12.2.2024 for failure to file and serve the record of appeal within 60 days as directed by Yano J on 11.12.2023. The applicant argued there was an error apparent on the face of the record because Christmas vacation time should have been excluded, that directions were not communicated, and that the striking out was punitive and prejudicial. The respondent opposed, contending the application was full of half-truths and that no excusable justification existed for delay in an appeal filed in 2021, particularly while the applicant enjoyed stay orders. Justice Nzili reviewed the record and found the appellant was represented at prior mentions, took an exparte mention date but failed to attend on 11.1.2024, and thereafter did nothing for a whole month despite service of the mention notice. Counsel's affidavit blaming the court staff and registry was unsupported. The court applied Habo Agencies, Belinda Murai and Rajesh Rughani on mistakes of counsel, holding that sheer inaction and indolence are not excusable, and that Article 159 is not a panacea for every procedural breach. The court distinguished the vacation-computation authorities, noting the 60-day order was specific, unreviewed, and no extension was sought. The applicant was also found to have misled the court on 12.2.2024. The application was dismissed with costs.

Key legal issues

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01

Whether non-attendance by counsel and delay constitute sufficient cause for reinstatement

Holding

No; non-attendance was undisputed and unexplained, and the appellant showed a month of inaction, amounting to plain indolence and dilatoriness

Reasoning

The record showed the appellant's counsel took an exparte mention date, failed to attend on 11.1.2024, and did nothing for a month thereafter despite directions being in place. Following Habo Agencies, Belinda Murai and Rajesh Rughani, mistakes of counsel through sheer inaction are not excusable, and the appellant also deponed half-truths instead of owning up.

p. 2
02

Whether the Christmas vacation suspended the 60-day period

Holding

No relief on this ground; the applicant never sought extension or clarity and the 11.12.2023 order was specific and unreviewed

Reasoning

The court distinguished authorities on Order 50 Rule 4 and vacation periods, noting the 60-day period was fixed by a specific court order of Yano J on 11.12.2023 which was neither reviewed nor appealed, and no extension was sought. The applicant also misled the court on 12.2.2024 regarding the lower court file.

p. 3
03

Whether there is an error apparent on the face of the record

Holding

No error apparent on the face of the record was established

Reasoning

The record showed the appellant was represented at prior mentions, took an exparte date, failed to attend, and had been served with the mention notice; no error by the court, staff or registry was demonstrated. The affdavit accusing the registry was unsupported.

p. 3

Legal principles established

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  • Justice must be dispensed without undue delay and Article 159 of the Constitution is not a panacea for every breach of procedure but applies only in deserving cases
  • Sheer inaction by counsel does not constitute an excusable mistake justifying reinstatement or extension of time
  • A party seeking relief from striking out must own up to mistakes rather than depone half-truths

Court orders

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  1. 1.The application for reinstatement of the appeal is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 50 Rule 4
  • Civil Procedure ActSection 79G
  • Interpretation and General Provisions ActSection 33; Section 57(b)
  • Limitations of Actions ActNot specified
  • Law Reform ActNot specified

Cases cited (10)

  • Westmount Holdings SDN B.H.D v Central Bank of Kenya
    Civil Applications 10 (E017) of 2020 (2023) KESC 3 (KLR) (8th October 2021)
  • Habo Agencies Ltd v Wilfred Odhiambo Musingo
    (2020) eKLR
  • Belinda Murai & others v Amos Wainaina
    C. A no Nai 9 of 1978
  • Rajesh Rughani v Fifty Investments Ltd & another
    (2005) eKLR
  • Raila Odinga & 5 others v IEBC & another
    (2013) eKLR & others (2014)
  • Book Point Ltd v Guardian Bank Ltd & another
    (2021) eKLR
  • Maersk (K) Ltd v Murabu Chaka Tsuma
    (2017) eKLR
  • Keziah Stella Pyman & 2 others v Paul Mwololo Mutevu & 8 others
    (2023) eKLR
  • Gabriel Osimbo v Chrispinus Mandare
    (2020) eKLR
  • Nyamogo & Nyamogo Co. Advocates v Moses Kipkolom Kogo
    (2000) eKLR
On appeal from
Tigania Law Courts (lower court)
Not stated in judgment
Jurisdiction invoked
Inherent/appellate jurisdiction to reinstate an appeal struck out for non-compliance; Civil Procedure Rules invoked

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, "Kuri v Minyori (Environment and Land Appeal E100 of 2021) [2024] KEELC 1264 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1264/eng@2024-03-06

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