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ELCDismissedNotice of Motion dated 7th December, 2023 (in ELC Appeal E001 of 2022)· [2024] KEELC 5517 (KLR)

Henry v Kinyua (Miscellaneous Application E006 of 2023) [2024] KEELC 5517 (KLR)

Environment and Land Court
25 July 2024
CYC. K. Yano
3,260 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Chuka court refused to let a litigant appeal two years late, blaming her advocate, after the winning party had already taken the land.

What this practically means

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Executive summary

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This is a ruling by C. K. Yano, J of the Environment and Land Court at Chuka on a Notice of Motion dated 7th December 2023 by Aileen Ncuguni Henry. The applicant sought leave to file an appeal out of time against the judgment of the Chief Magistrate's Court at Chuka delivered on 8th September 2021 in CMC ELC No. 2 of 2020, together with stay of execution and stay of proceedings pending the intended appeal. She blamed her former advocates for filing an incompetent appeal (ELC Appeal E001 of 2022) out of time and without leave, which was dismissed on 8th November 2022, and relied on the principle that mistakes of counsel should not be visited on a litigant. The respondent opposed, pointing to a delay of over two years, the dismissal of the earlier appeal, and the fact that he had executed the decree by transferring the suit land into his name in November 2021, obtaining a title deed, and charging the property for a loan of Kshs. 3,100,000/-. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi and Thuita Mwangi v Kenya Airways Ltd on length of delay, reasons for delay, arguability and prejudice, the court held the delay was inordinate and the applicant's explanations farfetched and frivolous, observing that a litigant cannot blame an advocate since the case belongs to the party. Leave to appeal out of time was declined, and the stay prayers fell away since there was no pending appeal and the decree had been executed. The motion was dismissed with costs to the respondent.

Key legal issues

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01

Whether good and sufficient cause was shown to warrant extension of time to appeal under Section 79G of the Civil Procedure Act

Holding

Leave to appeal out of time was declined because the delay of over two years was unreasonable and the reasons given were not convincing.

Reasoning

Under Section 79G, appeals must be filed within 30 days, with the proviso allowing extension on good and sufficient cause. The judgment was delivered on 8th September 2021 but the application was filed in December 2023. The applicant blamed her former advocate for filing a incompetent appeal that was dismissed, but the court held the case belongs to the litigant, the reasons were farfetched and frivolous, and the filing of the application after dismissal of the earlier appeal amounted to abuse of process. The respondent had also executed the decree and obtained title.

p. 5
02

Whether stay of execution and stay of proceedings could issue pending an intended appeal

Holding

Stay was refused because, with leave to appeal declined, there was no pending appeal, and the decree had already been executed and completed.

Reasoning

The court reasoned that once leave to appeal out of time was refused, an order of stay pending the intended appeal would serve no purpose since there is no appeal pending determination. Further, the evidence showed the respondent had transferred the suit land into his name in November 2021, obtained a title deed, and even charged the land for a loan. A court of law cannot issue orders in vain.

p. 6

Legal principles established

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  • Extension of time to appeal is a matter of judicial discretion exercised on settled principles: length of delay, reason for delay, chances of the appeal succeeding and degree of prejudice to the respondent.
  • A litigant cannot blame an advocate's mistakes to escape a dismissed appeal; the case belongs to the party, not the advocate.
  • A court cannot issue orders in vain.

Court orders

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  1. 1.The Notice of Motion dated 7th December, 2023 is dismissed with costs to the respondent.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 22 Rule 22(1)
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and 6(6)
  • Civil Procedure Rules, 2010Order 50 Rule 6
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure ActSections 3, 3A and 79G
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (2)

  • Leo Sila Mutiso v. Rose Hellen Wangari Mwangi
    Civil Application No. NAI 255 of 1997
  • Thuita Mwangi v. Kenya Airways Limited
    (2003) eKLR
Jurisdiction invoked
Sections 3, 3A and 79G of the Civil Procedure Act; Order 22 Rule 22(1), Order 42 Rules 6(1) and 6(6), Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 159(2)(d) of the Constitution

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, "Henry v Kinyua (Miscellaneous Application E006 of 2023) [2024] KEELC 5517 (KLR)", Case Analysis (2024). Notice of Motion dated 7th December, 2023 (in ELC Appeal E001 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5517/eng@2024-07-25

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