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ELCDismissedNotice of Motion dated 17th May 2024

Odundo v Mainya (Environment and Land Miscellaneous Application E009 of 2024) [2024] KEELC 6391 (KLR)

High Court of Kenya
30 September 2024
2,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to let a litigant appeal nine months late, ruling that blaming an idle advocate doesn't excuse inordinate delay.

What this practically means

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Executive summary

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This ruling of the High Court at Homa Bay (G. M. A. Ongondo, J.) determined a Notice of Motion dated 17th May 2024 by Paul Keta Odundo seeking enlargement of time to file an appeal out of time, a certificate of delay, and deeming of the appeal as duly filed, against a judgment of the Mbita Principal Magistrate's Court (ELC No. 3 of 2024) delivered on 23rd August 2023, which ordered him to pay the respondent Kshs. 500,000. The applicant had been committed to civil jail and his family evicted from the suit land. He blamed the firm of M/s Moriasi Osoro and Company Advocates, instructed shortly after judgment, for failing to lodge the appeal. The respondent opposed, contending the application was an abuse of process, that blaming counsel was insufficient, that the applicant had left prison in disregard of court orders, and that the appeal had no chance of success. Applying the Supreme Court's guidelines in Salat and the principles in Njoroge v Kimani, Portreitz Maternity, Rajesh Rughani, Dilpack and Duale Mary Ann Gurre, the court held that the litigant has a duty to follow up on his case; pure inaction by counsel is not excusable. The delay of nearly 9 months was inordinate and unexplained, and the decree had been partially satisfied. The application was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Has the applicant established his case for grant of the orders sought, namely enlargement of time to file an appeal and a certificate of delay?
  2. 2.Is the delay of nearly 9 months in lodging the intended appeal excusable?

Key legal issues

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01

Whether the delay in filing the appeal should be extended on grounds of a mistake of counsel

Holding

The delay was inordinate and inexcusable; mere inaction by counsel cannot excuse it

Reasoning

The court applied the Salat guidelines and the principles in Njoroge v Kimani, holding that without a reasonable and acceptable explanation for the delay the prospects of success are immaterial. The trial judgment was delivered on 23rd August 2023 but the application was only lodged on 18th May 2024, nearly 9 months later. Citing Rajesh Rughani, Dilpack and Duale Mary Ann Gurre, the court held the litigant must follow up his case, and pure inaction by counsel is not a mistake that should not be visited on the client.

p. 5
02

Whether the decree had been satisfied

Holding

The court found the decree had been partially satisfied

Reasoning

In dismissing the application the court noted that the decree had been partially satisfied, which weighed against extending time to appeal. The applicant had been committed to civil jail in execution of the decree of Kshs. 500,000 issued by the trial court on 23rd August 2023.

p. 5

Legal principles established

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  • Extension of time is not a right but an equitable remedy available to a deserving party at the discretion of the court, and the applicant bears the burden of explaining the delay
  • A litigant has a duty to follow up on his case after instructing an advocate; mere inaction by counsel is not excusable and may be visited on the client

Court orders

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  1. 1.The application by way of a Notice of Motion dated 17th May 2024 is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

majority

Wrote the judgment

On appeal from
Mbita Principal Magistrate's Court
Environment and Land Case No. 3 of 2024
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 22 Rule 52 of the Civil Procedure Rules, 2010; Section 79G and Section 75 of the Civil Procedure Act

Relief refused

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Enlargement of time to file the appeal and issuance of a certificate of delay out of time

The delay of nearly 9 months was inordinate and no reasonable and acceptable explanation was advanced; blame of counsel was inaction not excusable

p. 5

Bond pending appeal

Not granted as the application failed; respondent alleged the applicant had unlawfully left custody

p. 2

Costs

The application is dismissed with costs to the respondent.

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.

Accordingly, the application by way of a Notice of motion dated 17th May 2024, be and is hereby dismissed with costs to the respondent.
p. 5disposition - dismissal of extension of time application
I find and hold that the decree has been partially satisfied and that the delay in mounting this application is inexcusable and has not been satisfactorily explained.
p. 5inordinate and unexplained delay
without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused
p. 4test for condonation/extension of time
inaction on the part of an advocate as opposed to error of judgement or a slip is not excusable
p. 4mistake of counsel

Issues in the judgment

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minor

Chronology contradiction: the judgment states the applicant was sued in Mbita PMCC ELC No. 3 of 2024 yet the trial court's judgment was delivered on 23rd August 2023, before the stated year of the case number

minor

The court finds the decree 'partially satisfied' without any preceding analysis or evidence discussion of partial satisfaction

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, "Odundo v Mainya (Environment and Land Miscellaneous Application E009 of 2024) [2024] KEELC 6391 (KLR)", Case Analysis (2024). Notice of Motion dated 17th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6391/eng@2024-09-30

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