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ELCDismissedNot stated in judgment· [2024] KEELC 6910 (KLR)

Mwingirwa v Nkuraru & 2 others (Environment and Land Appeal E003 of 2023) [2024] KEELC 6910 (KLR)

Environment and Land Court (inferable from land dispute; judgment does not state)
16 October 2024
1,554 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate an appeal after repeated missed deadlines, ruling that litigants bear responsibility for their lawyers' failures.

What this practically means

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Executive summary

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This was a ruling on an application dated 25.7.2024 seeking reinstatement of an appeal struck out on 22.7.2024 for non-compliance with an order to file and serve a record of appeal. The application was supported by affidavits of two advocates, Charles Nyambati and Mercy Kaume, who blamed technology failures in the Court Tracking System (CTS) and the court's refusal to accept a physical copy. The 1st respondent, M'Mailutha Nkuraru, opposed the application in a replying affidavit, describing it as full of lies, noting it was the second reinstatement being sought, that no notice of change of advocates had been filed, and that the appellant had been personally warned of the impending strike-out. The court traced the chronology: the appeal was admitted on 6.3.2024 with 60 days to file a record; it was struck out on 20.5.2024 for non-compliance, reinstated on 4.7.2024 with 14 days to comply, and again no record was filed by the 22.7.2024 deadline despite the appellant being given until noon that day. The court found no evidence of CTS downtime or of seeking ICT assistance before the deadline. Applying the parameters for reinstatement - sufficient reason, prejudice, and whether justice can still be done - the court held the applicant complacent, indolent and blame-shifting. It noted the applicant swore no supporting affidavit, no change of advocates was on record, and that a party is liable for counsel's mistakes. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether sufficient reason existed for the second failure to file and serve the record of appeal

Holding

No sufficient reason was shown; no evidence of CTS downtime or of seeking ICT assistance before the deadline

Reasoning

The court traced the chronology: the appeal was admitted on 6.3.2024 with 60 days to file a record; it was struck out once, reinstated on 4.7.2024 with 14 days to comply, and again no record was filed by 22.7.2024. There was no evidence of system downtime between 4.7.2024 and 22.7.2024, no evidence of seeking ICT help earlier, and counsel made no appearance at noon to explain. Uploading on 24.7.2024 was not compliance.

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02

Whether the applicant's right to a fair hearing was violated

Holding

No; the respondents are equally entitled to fair hearing and a party given an opportunity that it fails to use cannot claim denial of fair hearing

Reasoning

The court held the sword of justice cuts both ways; the applicant did not attend the hearing of his own application, did not respond to the replying affidavit or submissions, and had been given multiple chances. Failure to utilise granted opportunities cannot be recast as a fair-hearing violation.

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03

Whether the advocate's affidavits could excuse the appellant

Holding

No; absent a supporting affidavit by the applicant, the blame squarely fell on the appellant, who is liable for his counsel's conduct

Reasoning

The court noted the applicant swore no supporting affidavit, so the advocates' affidavits could not establish his innocence or lack of technical knowledge. Further, no notice of change of advocates had been filed, so the firm filing the record was improperly on record. A party that fails to supervise its case shares liability for counsel's mistakes.

p. 3

Legal principles established

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  • The parameters for reinstating an appeal struck out are sufficient reason for non-compliance, prejudice to the opposite party, and whether justice can still be done
  • A case belongs to the litigant, not the lawyers, and a party is liable for mistakes of counsel where it fails in its duty to ensure its case is handled properly
  • Parties and advocates must help the court expedite hearing and determination of suits

Court orders

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  1. 1.The application dated 25.7.2024 seeking reinstatement of the appeal is dismissed
  2. 2.Costs of the application awarded to the 1st respondent
Jurisdiction invoked
Inherent jurisdiction of the court - Sections 1A, 1B & 3A of the Civil Procedure Act and Article 159 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, "Mwingirwa v Nkuraru & 2 others (Environment and Land Appeal E003 of 2023) [2024] KEELC 6910 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6910/eng@2024-10-16

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