Amusala v Gavunjii (Environment and Land Miscellaneous (Reference) Application E001 of 2025) [2025] KEELC 3877 (KLR)
The bottom line
#A Kenyan landowner who lost land by default and waited over four months to appeal lost his bid for more time and protection from eviction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave to appeal out of time against the judgment of 30th August 2024
- 2.Whether an order of stay of execution of the decree in Hamisi ELC Case No. 23 of 2021 pending the intended appeal should issue
Key legal issues
#Whether the delay in seeking leave to appeal out of time was adequately explained
The explanation (advocate's failure) was not accepted; the receipts exhibited did not show payment for this case and instructions were not demonstrated
The applicant exhibited two receipts totalling Kshs 15,000/- but the receipts did not indicate the payments related to this case and showed a balance of Kshs 20,000/- owing. The court held that giving instructions entails payment of agreed fees and provision of materials, and that a party blaming an advocate must show the advocate had full instructions but failed to act. A delay of over four months was found unreasonable.
Whether the contemplated appeal was arguable
The court was not satisfied the matter was fit for appeal because the trial suit proceeded ex parte and the applicant's evidence was not on record; the proper remedy was review or setting aside in the trial court
Since the trial court's judgment was entered ex parte, the applicant's evidence, if any, was not before the court. The court held the applicant should approach the trial court, subject to its discretion and time limitations, to seek review and/or setting aside of the judgment so as to adduce his evidence, rather than appealing.
Whether stay of execution pending appeal should be granted
Stay failed as it was dependent on the grant of leave to appeal out of time, which was refused
The applicant sought stay of execution of the decree evicting him from L.R No. KAKAMEGA/SHIRU/126 pending an intended appeal. Because the application for extension of time failed, the foundation for the stay prayer fell away. The respondent, as the successful litigant and registered owner, was entitled to the fruits of the judgment.
Legal principles established
#- A party who blames an advocate for a failure must demonstrate that the advocate had full instructions but failed to act in the client's best interests
- Instructions to counsel entail, inter alia, payment of agreed professional fees and provision of all requisite information and material
Court orders
#- 1.The application dated 16th January 2024 is dismissed
- 2.Each party to bear own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court at Hamisi
- Hamisi MCL & E Case No. 23 of 2021
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 42 Rules 5 & 6 of the Civil Procedure Rules; Articles 50(1) and 159(2) of the Constitution of Kenya 2010
Relief refused
#Leave to appeal out of time against the whole judgment of 30th August 2024
No satisfactory explanation for the delay of more than 4 months; no demonstration that the applicant gave instructions to Counsel; the suit proceeding ex parte meant the applicant's recourse lay in review or setting aside before the trial court
Stay of execution of the decree in Hamisi ELC Case No. 23 of 2021 pending the intended appeal
The prayer for stay was dependent on the prayer for leave to appeal out of time being granted, which failed
Costs
Each party to bear own costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A party who wants to lay blame on his/her Advocate for some failure must demonstrate that the Advocate had full instructions but failed to act in the best interests of the client.
The applicant has recourse to the trial court, subject to the discretion of the trial court and any time limitations, to seek review and/or settling aside of the judgment so as to enable him adduce his evidence, if any.
For the foregoing reasons the application is hereby dismissed. Each party to bear own costs of the application.
Issues in the judgment
#The applicant's name is not stated anywhere in the ruling; the applicant is referred to only by role
The date of the application is given as 16th January 2024 while the supporting affidavit is sworn on 16th January 2025, and the respondent states the judgment was delivered on 20th August 2024 whereas the ruling elsewhere records 30th August 2024
The application is described as 'dated 16th January 2024' but the intended appeal and affidavit are dated 2024/2025; the year 2024 appears to be an error for 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amusala v Gavunjii (Environment and Land Miscellaneous (Reference) Application E001 of 2025) [2025] KEELC 3877 (KLR)", Case Analysis (2025). Not stated in the judgment (arising from Hamisi MCL & E Case No. 23 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3877/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.