[2025] KEELC 5297 (KLR)
The court found that the applicant had provided a sufficient explanation for the delay in filing the appeal, namely, that the failure was due to his advocate's mistake and not his own inaction. The court accepted that the applicant acted promptly upon discovering the omission and sought to regularize his position by...
Source-derived case information.
- Citation
- [2025] KEELC 5297 (KLR)
- Parties
- Appellant: Philip Achieng John; Appellant: Gordon Achieng; Respondent: Eliud Kwagwara Adawo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Case E004 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application allowed in part
- Judges
- MN Kullow
- Legal Topics
- Extension of Time, Stay of Execution, Mistake of Advocate, Appeals Out of Time, Judicial Discretion, Land Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Achieng John
Appellant
Gordon Achieng
Appellant
Eliud Kwagwara Adawo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the judgment in Migori ELC No. 82 of 2018.
- 2 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
- 3 Whether the delay in filing the appeal was sufficiently explained and excusable.
Ratio Decidendi
The court found that the applicant had provided a sufficient explanation for the delay in filing the appeal, namely, that the failure was due to his advocate's mistake and not his own inaction. The court accepted that the applicant acted promptly upon discovering the omission and sought to regularize his position by applying for the judgment and proceedings and filing the present application. The court emphasized that a litigant should not be punished for the mistake of counsel where the litigant has acted diligently. The court further exercised its discretion to grant a stay of execution of the judgment and allowed the applicant to file the appeal out of time, subject to filing the...
Court Disposition
application allowed in part
Orders
- An order of stay of execution is issued in respect of the judgment in Migori MISC ELC No. 82 of 2018.
- Leave is granted to the applicant to file an appeal out of time, on condition that the memorandum of appeal is filed within 14 days of this order and the appeal is prosecuted within 90 days.
Full Case Text
Judgment text and source record
29 paragraphs
John & another v Adawo (Environment and Land Miscellaneous Case E004 of 2022) [2025] KEELC 5297 (KLR) (17 March 2025) (Ruling)
Neutral citation: [2025] KEELC 5297 (KLR)
Republic of Kenya
In the Environment and Land Court at Migori
Environment and Land Miscellaneous Case E004 of 2022
MN Kullow, J
March 17, 2025
Between
Philip Achieng John
1st Plaintiff
Gordon Achieng
2nd Plaintiff
and
Eliud Kwagwara Adawo
Defendant
Ruling
1. By a Notice of Mention dated 15/3/2022 the Applicant sought for orders:-i.Spentii.That these are interim stay of execution of the Judgement and because of the subordinate court in Migori ELC No. 82 of 2018 delivered on 4/3/2020. iii.That the honourable court be pleased to enlarge time to the proposed Applicants and upon time being enlarged the proposed Applicant be allowed to file appeal out of time. Andiv.That the cost of the Application be provided for.
2. The Application was supported by Affidavit of Philip Achieng John the proposed Appellant who deponed that on 4/3/2020 the trial court had entered Judgement in favour of the Respondent and that he is aggrieved of the said Judgement. He had instructed an advocated to reply the said Appeal but the same was not filed and that the mistake to file the appeal on time was not of his own making a fact he learned when he visited the court requesting to check on the status of the appeal.
3. The Applicant contended that by the time he realised this mistake by his advocate, the 30 days window allowed by the court had lapsed.
4. The Application was opposed by the Respondent by way of grounds of opposition filed on 6/6/2022 in which the Respondent contended that the Application was Pre-mature, misconceived and otherwise and abuse of the process of the court.
5. The Respondent further contended that the Application does not satisfy the conditions set out under order 42 Rule 6 of the Civil Procedure. Rules to the extent that the Applicant had not shown or established any evidence of substantial loss and further that the Application has been overtaken by events and lastly that the Application was filed 2 years after the Judgement was rendered and no explanation for the delay was given.
6. The Application was deponed by way of Written Submissions. In his submissions he reiterated that he had instructed his advocate to file an appeal on his behalf. However, at the Registry he found that the said Appeal was not filed and he thus prays that the mistake of his advocate should not be visited on him.
7. The Applicant contends that he rushed to court and applied for a copy of the Judgement and Proceedings and filed the instant Application and thus pray the court to exercise its discretion in allowing the application.
8. The Respondent in response to the Submission the Applicant filed his Submissions and he contested that the Application has not sufficiently satisfied the requirement under order 42 Rule 6 of the Civil Procedure Rules. He stated that the Applicant has not shown that substitutional loss may result if the Application is not granted, that the Application was made after a long period of time.
9. The Respondent further countered that the Applicant has since the Judgement vacated the suit land.
10. I have considered the Application, the grounds opposition to the same and the submissions filed by the parties. This is an Application in which the Applicant is inviting the court to exercise its discretion. He states that the delay in filing the Application was occasioned by not his own mistake but by an advocate who he had instructed. He has reiterated on several occasions that a party should not be punished to the mistake of his advocate.
11. The Respondent on the other hand states that the Application was filed long after the Judgement was delivered and that the Applicant has not satisfied the conditions of the orders sought.
12. The burden of offering sufficient explanation for delay was both stated in the case of Susan Oloo – 2 Others Versus Doris Odindo Omollo (2019) EKLR where the court held that;In the instant Application which is founded on Rule 4 of the Court Rules, the single Judge has discretion with which it he must exercise judiciously.”In the case the Applicant has stated that the delay was occasioned by his advocate and hence he should not be blamed for the same. Which the court assures him and, in the circumstances, and having considered the Application, I find as follows:i.That an order of stay of execution is hereby issued in the Judgment of the case in Migori MISC ELC NO. 82 of 2028. ii.That leave is hereby granted to the Applicant to file his Appeal out of time on conditions that he files the Memorandum of Appeal within 14 days of the date of his order and that be prosecuted within 90 days.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF MARCH, 2025MOHAMMED N. KULLOWJUDGEIn the presence of:Vincent Court AssistantNo appearance For the PlaintiffNo appearance for the Defendant