Adeya v Ogutu (Land Case Appeal E020 of 2023) [2024] KEELC 5917 (KLR)
The bottom line
#The Environment and Land Court in Homa Bay refused to strike out a cross-appeal, confirming that Kenya's courts favour hearing cases over technical knockouts.
What this practically means
#Executive summary
#Key legal issues
#Who is on record for the applicant
The firm of Odindo and Company Advocates is on record for the applicant
The court noted that on 7th March 2024 learned counsel H Obach held brief for Odindo, counsel for the applicant, establishing that Odindo and Company Advocates, not H Obach and Partners, remained on record despite the contrary averment in the replying affidavit.
Service of the memorandum and record of the cross-appeal
Service was proved by the screenshot of an email in the replying affidavit
The court found the replying affidavit disclosed proof of service in the form of a screenshot email, and further that the proceedings of 7th March 2024 showed directions had been given on both the appeal and the cross-appeal in the presence of counsel, both having been admitted.
Timeliness of the cross-appeal
The cross-appeal was lodged without delay, immediately after the amended memorandum of appeal
The court found the cross-appeal memorandum was dated 22nd December 2023 and filed immediately after the amended memorandum of appeal of 21st December 2023, so no delay attributable to the cross-appellant existed and no question of extension of time or striking out for lateness arose.
Whether the application should be allowed
The application is dismissed; the parties' rights of access to justice and fair hearing prevail
Guided by Articles 48 and 50(1) of the Constitution, the court held both the appellant and cross-appellant are entitled to access justice and fair hearing of their respective appeals, making it absurd and unfair to grant the striking-out orders sought. The application was dismissed with costs in the cause.
Legal principles established
#- An application for extension of time must show good and substantial reasons for the delay and is an equitable remedy available only to a deserving party at the court's discretion
- A party has an undoubted right of appeal
Court orders
#- 1.The Notice of Motion dated 28th May 2024 is dismissed
- 2.Costs of the application to be in the cause
- On appeal from
- Subordinate court (magistrates' court, not named)
- Jurisdiction invoked
- Appellate jurisdiction under the Civil Procedure Act (Cap 21) and Order 42 of the Civil Procedure Rules, 2010 over an appeal and cross-appeal from a subordinate court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adeya v Ogutu (Land Case Appeal E020 of 2023) [2024] KEELC 5917 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5917/eng@2024-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.