Brenchly (Appealing as the Legal Representative of the Estate David Lee Brenchley – Deceased) v Imathiu (Environment and Land Appeal E076 of 2022) [2024] KEELC 7236 (KLR)
The bottom line
#The Environment and Land Court in Meru reinstated a struck-out land appeal, accepting that a change of law firms explained the delay, but ordered the appellant to pay costs and deposit security.
What this practically means
#Executive summary
#Key legal issues
#Whether the inordinate delay of about six months in bringing the review application was excusable
The delay was explained by transitional issues on change of advocates; the court found no intention to overreach and held that justice could still be done, excusing the delay on terms.
The court acknowledged the unexplained close to six-month delay but accepted counsel's sworn explanation of transition between law firms between 14.12.2023 and 23.1.2024, belated efforts to comply, and the absence of prejudice or change in the substratum of the appeal. Relying on Ivita vs Kyumbu and Chemwolo vs Kubede, the court held justice should still be done despite the delay.
Whether there was an error apparent on the face of the record justifying review
Strictly, no glaring error apparent on the face of the record existed; the delay and inaction were attributable to the applicant's lack of diligence, but the court nevertheless exercised its discretion to reinstate on terms.
The court found the alleged error not glaring and that the applicant was not keen or vigilant, having ignored registry communications of 24.11.2023 and directions of 16.11.2023. It rejected blame of the registry, noting the decree and certified proceedings were on file. It nonetheless reinstated under its equitable discretion with throw-away costs and security.
Whether a temporary injunction should issue to preserve the suit property pending appeal
Yes; the respondent's counsel conceded non-occupation and did not discount the applicant's apprehension, so preservation of the status quo was warranted pending the appeal.
Guided by Nguruman, Kogo vs Tenai, Gitonga Wanjau and Amir Suleiman, the court held that where the respondent lives abroad with only farm workers in occupation and did not demonstrate the apprehension was far-fetched, the balance of convenience favoured maintaining the suit property's current status to avoid rendering the appeal nugatory.
Legal principles established
#- An application for review must be based on new and vital material not available with due diligence, error apparent on the face of the record, or other sufficient reason, and must be made without unreasonable delay.
- Reinstatement of a struck-out appeal is discretionary and must be exercised on sound reasons to do justice between the parties, not on whim, caprice or sympathy.
- Where there is no intention to overreach and justice can still be done, a genuine mistake of counsel and delay may be excused and an appeal reinstated on terms including costs.
- In granting interim preservation pending appeal, the court weighs the balance of convenience and opts for the lower risk of injustice.
Court orders
#- 1.Review and setting aside of the ruling striking out/dismissing the appeal and reinstatement of the appeal
- 2.Applicant to deposit Kshs.50,000/= as security for costs and throw-away costs of Kshs.15,000/= to the respondent
- 3.Supplementary record of appeal to be filed within 15 days
- 4.Parties to canvass the appeal by way of written submissions due by 30.10.2024
- 5.Judgment on 20.11.2024
- Jurisdiction invoked
- Order 45 of the Civil Procedure Rules as read together with Section 80 of the Civil Procedure Act; Sections 1A, 1B & 3A of the Civil Procedure Act; Section 9(2) Environment and Land Court Act; Articles 50(1) and 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brenchly (Appealing as the Legal Representative of the Estate David Lee Brenchley – Deceased) v Imathiu (Environment and Land Appeal E076 of 2022) [2024] KEELC 7236 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7236/eng@2024-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.