[2017] KEELC 893 (KLR)
The court found that the delay of six years between the judgment and the application for extension of time was inordinate and inexcusable. The only reason advanced for the delay was the alleged failure of the applicants' advocates to inform them of their withdrawal, but the court determined that the applicants...
Source-derived case information.
- Citation
- [2017] KEELC 893 (KLR)
- Parties
- Applicant: Murkomen Yano; Applicant: Kiprotich Kipkore; Respondent: Gabriel Kilimo; Respondent: Kanda Chesang
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 24 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- A Ombwayo
- Legal Topics
- Extension of Time, Stay of Execution, Appeal Out of Time, Land Disputes, Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Murkomen Yano
Applicant
Kiprotich Kipkore
Applicant
Gabriel Kilimo
Respondent
Kanda Chesang
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have provided sufficient reason for the delay in filing an appeal out of time.
- 2 Whether the applicants are entitled to a stay of execution pending appeal.
- 3 Whether the mistake of counsel is a valid ground for extension of time in the circumstances.
Ratio Decidendi
The court found that the delay of six years between the judgment and the application for extension of time was inordinate and inexcusable. The only reason advanced for the delay was the alleged failure of the applicants' advocates to inform them of their withdrawal, but the court determined that the applicants themselves failed to provide instructions, attend court, or pay legal fees. The court held that blaming counsel was a lame excuse and that no proper explanation for the delay was provided. As a result, the application for extension of time and stay of execution was dismissed as untenable.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution and leave to appeal out of time is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L MISC. APPLICATION CASE NO. 24 OF 2014
(FORMERLY ELDORET HCC MISC. CIVIL APPLICATION NO. 168 OF 2014)
MURKOMEN YANO
KIPROTICH KIPKORE
(KAKIBIGEN CLAN)............................................APPLICANTS
VERSUS
GABRIEL KILIMO
KANDA CHESANG
(KARTUR CLAN)..........................................RESPONDENTS
RULING
This is an application by Murkomen Yano and Kiprotich Kipkore of Kakibigen clan and Gabriel Kilimo and Kanda Chesang of Kartur clan. The applicants pray for a temporary stay of execution of the Elders’ Award and judgment and or decree and/or order in Iten SRMCC LDT No. 5 of 2006 pending hearing and determination of appeal. Moreover, that the application be allowed to appeal out of time. The grounds for the application are that the applicant has a meritous appeal and that the delay is not deliberate and therefore, excusable. That the respondent will not suffer any prejudice if the application is allowed. In the supporting affidavit, the applicants state that the firm of Ngala & Company never informed the applicants when they ceased acting and therefore, they were surprised when an order of eviction was issued. They state that mistake of counsel should not be visited on the parties. The respondents admit that Ngala & Company Advocates withdrew from acting for the applicants but add that their failure to act for applicants cannot be visited upon the respondents. Moreover, that the orders were issued in accordance with the law.
I have considered the application, replying affidavit and rival submissions and do find that the Marakwet Land Disputes Tribunal made an award on 21. 7.2005. the award came for adoption as a judgment of the court on 12. 11. 2008 in the presence of the claimants and their counsel and in absence of the objectors and after consideration of the award, the court adopted the award as a judgment of court. The land in question was awarded to Kartur clan by court on 12. 11. 2008. The dissatisfied party was to appeal to the High Court at that time within 30 days. The applicants failed to appeal within time as required by law. The only reason given for delay in appealing is the allegation that the applicants were let down by their lawyers.
I have looked at the application by Ngala & Company Advocates to cease acting dated 9. 3.2010 and do find that the said Advocates appeared frustrated by the behavior of the applicants who failed to provide adequate instructions, failed to attend court or call on their Advocates whenever required, failed to pay legal fees. I do find that it is a lame excuse for applicants to blame their lawyers for failure to take action.
It is settled law that the decision whether or not to extend the time for appealing is essentially discretionary. Courts take into consideration the length of delay, reason for delay, chances of success and degree of prejudice. The delay in this matter between 12. 11. 2008 and the year 2014 which is 6 years since the decree was made. This delay is inordinate and inexcusable. Moreover, no proper explanation has been shown for the delay as it is a blame game between the applicants’ lawyers and the applicant. It follows that there being no appeal, the application for stay of execution pending appeal is untenable. The application is therefore, dismissed with costs.
DATED AND DELIVERED AT ELDORET THIS 6TH DAY OF OCTOBER, 2017.
A. OMBWAYO
JUDGE