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ELCDismissedNot stated in the judgment· [2024] KEELC 5516 (KLR)

Gitau & 6 others v Attorney General for Commissioner of Lands & another (Environment & Land Case 120 of 2008) [2024] KEELC 5516 (KLR)

Environment and Land Court
18 July 2024
OAO. A. Angote
2,032 words in judgment
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The bottom line

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A Kenyan court refused to excuse a one-year delay in challenging a taxing officer's ruling, confirming that extension of time must be earned, not assumed.

What this practically means

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Executive summary

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The Plaintiffs filed a Chamber Summons dated November 2, 2023 under sections 1A, 1B and 3A of the Civil Procedure Act and rule 11 of the Advocates (Remuneration) Order 2009, seeking leave to file an objection and taxation reference out of time against a ruling of Deputy Registrar Hon. I.N. Barasa delivered on October 21, 2022, and that the leave operate as a stay of execution. Their advocate deponed that after the ruling he promptly requested reasons, but fell ill and took sick and annual leave between November and December 2022, resuming on January 10, 2023, by which time the fourteen-day window under rule 11(1) had lapsed. The 2nd Defendant opposed via Grounds of Opposition, arguing the ruling had been delivered in the presence of the Plaintiffs' counsel, the firm had other advocates, and the medical documentation post-dated the limitation period. Angote J applied the Supreme Court's Salat principles on extension of time and the Too v Hellen Tum jurisprudence. The court found the delay totalled about one year; that counsel had recovered by May 2023 when the court granted directions to formalise the application but only filed in November 2023 after repeated indulgences; and that two advocates appeared for the Plaintiffs. It held that the Plaintiffs and their counsel failed to lay a satisfactory basis for the exercise of the court's discretion and that the 2nd Defendant would be prejudiced by being denied the fruits of judgment through laches. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether enlargement of time under rule 11(4) of the Advocates (Remuneration) Order should be granted

Holding

Dismissed - the Applicants failed to satisfactorily explain a delay of about one year and prejudice would ensue to the 2nd Defendant

Reasoning

The court applied the Salat principles on extension of time. It found the delay ran from November 2022 to November 2023; counsel's illness ended by early 2023 yet no application was filed until court directions were given and ignored; the firm had two advocates on record and counsel had recovered by May 2023 when the court granted leave directions. The 2nd Defendant would be deprived of the fruits of judgment through laches. Discretion was therefore not exercised in the Plaintiffs' favour.

p. 5

Legal principles established

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  • Extension of time is a discretionary and equitable remedy available only to a deserving party who lays a basis to the satisfaction of the court

Court orders

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  1. 1.The application dated 2nd November 2023 is dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B and 3A
  • Advocates (Remuneration) Order 2009rules 11(1), 11(2), 11(3), 11(4) and paragraph 11
  • Constitution of Kenyaarticle 159(2)(d)

Cases cited (3)

  • Nicholas Arap Korir Salat vs Independent Electoral & Boundaries Commission & 7 others
    [2014] eKLR
  • Johana Kipkemei Too v Hellen Tum
    [2014] eKLR
  • Raila Odinga & 5 others v IEBC & 3 others
    Petitions Nos 3,4 and 5 of 2013 [2013] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and rule 11 of the Advocates (Remuneration) Order 2009

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, "Gitau & 6 others v Attorney General for Commissioner of Lands & another (Environment & Land Case 120 of 2008) [2024] KEELC 5516 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5516/eng@2024-07-18

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