Tuitoek & another v Koech (Miscellaneous Civil Application E006 of 2024) [2024] KEELC 6492 (KLR)
The bottom line
#The High Court in Iten refused to let the defendants appeal late, holding that blaming a lawyer for not informing them is not a good enough excuse.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of about three weeks in seeking leave to appeal out of time was excusable
The delay was not inordinate, but the explanation offered was unsatisfactory and leave was refused
The court applied the Salat principles and Gitau v Kagwi factors. Blaming a former advocate for failing to communicate the ruling is not per se sufficient; the applicants gave no evidence they followed up their matter with their erstwhile advocates, so the explanation failed the good and sufficient cause test under Section 79G.
Whether the intended appeal had chances of success
It did not; the trial court appointed a representative under a power of attorney, not a guardian ad litem, so the jurisdictional challenge was untenable
The impugned ruling permitted the plaintiff's attorney to represent him pursuant to a duly registered power of attorney. Although a guardian ad litem prayer existed as an alternative, it was not demonstrated that the court granted that order rather than one appointing a legal representative. The appeal therefore stood no chance of success.
Legal principles established
#- Failure by counsel to inform a client of a court decision is not per se a good and sufficient reason for granting leave to appeal out of time; a client has a duty to pursue his advocates
- Extension of time is an equitable remedy, not a right, and the applicant bears the burden of laying a basis to the satisfaction of the court
Court orders
#- 1.The application dated June 27, 2024 is dismissed
- 2.Costs of the application to the respondent
- On appeal from
- Eldama Ravine Chief Magistrate's Court (CMC ELC)
- E006 of 2023
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tuitoek & another v Koech (Miscellaneous Civil Application E006 of 2024) [2024] KEELC 6492 (KLR)", Case Analysis (2024). Eldama Ravine CMC ELC Case No. E006 of 2023 (intended appeal); Notice of Motion dated June 27, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6492/eng@2024-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.