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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 5917 (KLR)

Adeya v Ogutu (Land Case Appeal E020 of 2023) [2024] KEELC 5917 (KLR)

Environment and Land Court of Kenya
18 September 2024
1,534 words in judgment
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The bottom line

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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

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Executive summary

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This was a ruling by the Environment and Land Court at Homa Bay (G.M.A. Ong'ondo, J) on a Notice of Motion dated 28th May 2024 brought by the appellant, Lilian Aluodo Odenya, under Order 42 Rules 11, 12 and 13 of the Civil Procedure Rules, 2010, seeking to strike out the cross-appellant's record of appeal dated 17th May 2024 and the cross-appeal itself on the grounds that it was filed and served out of time without leave, was never listed for directions or admitted, was not served on her, and was incomplete for lacking the trial court's judgment. The cross-appellant, through Robert Ochieng, replied that service was effected as shown on the e-filing system, that directions were given on both the appeal and cross-appeal in counsel's presence, and that any incomplete record was a mere procedural technicality curable under Article 159(2)(d). The court first confirmed that Odindo and Company Advocates was on record for the applicant, H Obach having only held brief on 7th March 2024. It then found the memorandum of cross-appeal dated 22nd December 2023 was filed immediately after the amended memorandum of appeal, so there was no delay; that service of the record was proved by an email screenshot; and that on 7th March 2024 the court had given directions on both the appeal and cross-appeal, both having been admitted. Invoking Articles 48 and 50(1) of the Constitution, the court held it would be absurd and unfair to grant the orders sought and dismissed the application with costs in the cause on 18th September 2024.

Key legal issues

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01

Who is on record for the applicant

Holding

The firm of Odindo and Company Advocates is on record for the applicant

Reasoning

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.

p. 3
02

Service of the memorandum and record of the cross-appeal

Holding

Service was proved by the screenshot of an email in the replying affidavit

Reasoning

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.

p. 3
03

Timeliness of the cross-appeal

Holding

The cross-appeal was lodged without delay, immediately after the amended memorandum of appeal

Reasoning

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.

p. 3
04

Whether the application should be allowed

Holding

The application is dismissed; the parties' rights of access to justice and fair hearing prevail

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 28th May 2024 is dismissed
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rules 11, 12 and 13
  • Civil Procedure Rules, 2010Order 42 Rule 32; Order 50 Rules 4, 6, 7 and 8
  • Constitution of Kenya, 2010Article 159(2)(b), (d) and (e)
  • Constitution of Kenya, 2010Articles 48 and 50(1)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 75
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 79G
  • Environment and Land Court Act, 2015Sections 3 and 19

Cases cited (8)

  • Kivanga Estates Ltd -vs- National Bank of Kenya Ltd (2017) eKLR
  • Gilbert Mwangi Njuguna -vs- Judicial Service Commission and Attorney General (2020) KESC 52
    (2020) KESC 52
  • Kimeu -vs- Kasese (1970) KLR 32
    (1970) KLR 32
  • Shadrack Arap Baiywo -vs- Bodi Bach (1987) eKLR
  • Christine Aloo -vs- Mary Atieno Auma (2021) eKLR
  • Kenya Power and Lighting Company Ltd -vs- Peter Langi Mwasi (2018) eKLR
  • Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & 7 others {2014} eKLR
  • Butt -vs- Rent Restriction Tribunal (1979) eKLR
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

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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, "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.