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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNotice of Motion dated 8th May, 2024 (Civil Appeal, Kisumu)

Laisa v Kinara (Civil Application E061 of 2024) [2024] KECA 834 (KLR)

Court of Appeal of Kenya
19 July 2024
1,190 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave a litigant a second chance to appeal after his lawyer quit and refunded his fees, showing courts will excuse delays when blame is proven.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu (Okwengu, JA) on a Notice of Motion dated 8th May 2024 by Bosco Wepukhulu Laisa, in person, seeking leave to appeal out of time against the judgment of the Environment & Land Court at Kakamega (Ohungo, J.) delivered on 21st November 2023, which allowed a first appeal by Elcah A. Kinara, set aside the subordinate court's judgment in the applicant's favour, and dismissed his suit over land parcel Kakamega/Chekalini/744. The applicant's former advocates filed a notice of appeal in time but failed to file the memorandum and record of appeal, later refunding his fees and ceasing to act by consent on 29th February 2024. The respondent filed no response or submissions, so the motion stood unopposed. The court acknowledged that a litigant bears responsibility for his advocate's defaults, but found that the refund of fees and cessation of acting substantiated the applicant's claim of being let down. His delay in moving the court until 8th May 2024 was explained by his efforts acting in person to obtain proceedings, including online payment on 18th April 2024, and his draft memorandum showed an arguable appeal. Applying the Salat principle that extension of time is an equitable, discretionary remedy, the court allowed the application, granted leave to file the appeal out of time, directed that the memorandum and record of appeal be filed and served within 21 days, and made no orders as to costs since the motion was unchallenged.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted leave to appeal out of time
  2. 2.Whether the draft memorandum of appeal and record of appeal should be deemed filed upon payment of requisite fees
  3. 3.Whether the delay in filing the appeal and the application has been satisfactorily explained

Key legal issues

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01

Whether blame for delay attributable to an advocate can justify extension of time

Holding

Although an advocate is the litigant's agent and the litigant bears responsibility for timely filing, conduct of the advocate that substantiates the litigant's claim of being let down (refund of fees and cessation of acting) can justify extension of time

Reasoning

The court noted that in normal circumstances it would hesitate to accept an explanation shifting blame to an advocate, since the advocate is only an agent and the applicant must ensure timely filing. However, the applicant demonstrated that the advocate refunded his money and ceased acting on 29th February 2024, which substantiated his claim that he was let down. Combined with his prompt efforts acting in person and an arguable appeal, this laid a good basis for the exercise of discretion.

p. 3
02

Whether the applicant demonstrated an arguable appeal and diligence

Holding

The applicant showed through the draft memorandum of appeal that he had an arguable appeal, and through his efforts to obtain proceedings and a certificate of delay that he had diligently pursued his right of appeal

Reasoning

The applicant filed his application on 8th May 2024 and explained the intervening delay: he requested proceedings on 20th March 2024, paid for them online on 18th April 2024, received them but was not issued a certificate of delay. The court found he had tried his best to exercise his right of appeal and that his draft memorandum showed an arguable appeal, making it fair and just to grant the extension.

p. 3

Legal principles established

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  • Extension of time is not a right of a party but an equitable remedy available only to a deserving party at the discretion of the Court

Court orders

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  1. 1.Leave granted to the applicant to file his appeal out of time
  2. 2.The memorandum and record of appeal to be filed and served within 21 days from the date of the ruling
  3. 3.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Environment & Land Court at Kakamega
Jurisdiction invoked
Inherent discretion of the Court of Appeal to extend time for filing an appeal

Relief refused

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Costs of the application

The application was unopposed, so the court made no orders as to costs

p. 3

Costs

No orders as to costs - 'As the motion was not challenged, I make no orders as to costs'

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

As stated by the Supreme Court in Nicholas Kiptoo arap Korir Salat v IEBC (2014) eKLR, extension of time is not a right of a party, but an equitable remedy that is only available to a deserving party at the discretion of the Court.
p. 3Extension of time as equitable discretionary remedy
Consequently, I allow the application and grant the applicant leave to file his appeal out of time. The memorandum and record of appeal shall be filed and served within 21 days from today.
p. 3Final orders - leave granted with 21-day filing window
As the motion was not challenged, I make no orders as to costs
p. 3Costs

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, "Laisa v Kinara (Civil Application E061 of 2024) [2024] KECA 834 (KLR)", Case Analysis (2024). Notice of Motion dated 8th May, 2024 (Civil Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/834/eng@2024-07-19

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