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Court of AppealDismissedNot stated in judgment

Ndeti Muthuka v Ndaisi Muluma [1979] KECA 16 (KLR)

Court of Appeal
3 March 1979
ELE.J.E Law
307 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it has no power to hear third appeals from subordinate courts, so requests to extend time for such appeals are automatically dismissed.

What this practically means

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Executive summary

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This was an in-chambers application by an intending appellant seeking an extension of time to file an appeal, arising from a suit filed in 1973 in a Court of the third class. The applicant lost at first instance, lost his appeal to a subordinate court of the first class, and lost again on appeal to the High Court. He then sought to bring a third appeal to the Court of Appeal, and applied for extension of time to file it. Law, JA dismissed the application for want of jurisdiction. Relying on Sanga v Baya [1973] EA 312, in which the Court of Appeal's predecessor held that the Court has no jurisdiction in Kenya to entertain a third appeal, and noting that that holding had been given effect by legislation - the Statute Law (Miscellaneous Amendments) Act 1978, which amended section 71A of the Civil Procedure Code by adding subsection (2) providing that an appeal under that section shall be final - the judge held that the Court had been deprived by statute of jurisdiction to entertain a third appeal. Because the Court lacked jurisdiction over the intended appeal, no question of exercising discretion to extend time arose. The application was dismissed with costs fixed at Shs 150, with the consent of the advocates concerned.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal has jurisdiction to entertain an application for extension of time to file a third appeal
  2. 2.Whether the Court's discretion to extend time can be exercised where the Court has no underlying jurisdiction over the intended appeal

Key legal issues

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01

Jurisdiction of the Court of Appeal over third appeals

Holding

The Court has no jurisdiction to entertain an application for extension of time to file a third appeal, since section 71A(2) of the Civil Procedure Code makes an appeal under that section final and thereby deprives the Court of jurisdiction over third appeals

Reasoning

The Court of Appeal's predecessor in Sanga v Baya held that the Court has no jurisdiction in Kenya to entertain a third appeal. That decision was given legislative effect by the Statute Law (Miscellaneous Amendments) Act 1978, which added section 71A(2) providing that an appeal under section 71A shall be final. Accordingly the applicant's intended third appeal, and any application preliminary to it, falls outside the Court's jurisdiction.

p. 2
02

Whether discretion to extend time can be exercised absent jurisdiction

Holding

No - without jurisdiction over the intended appeal, there is no discretion to exercise

Reasoning

The applicant sought an extension of time within which to file his intended third appeal. The judge reasoned that the extension of time jurisdiction is ancillary to the substantive appellate jurisdiction. Where the Court has no jurisdiction to hear the appeal itself, there is nothing upon which discretion can operate, and the application must be dismissed without consideration of the merits or any delay.

p. 2

Legal principles established

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  • The Court of Appeal in Kenya has no jurisdiction to entertain a third appeal from a subordinate court of the third class, following Sanga v Baya and section 71A(2) of the Civil Procedure Code
  • Where a court lacks jurisdiction over the substantive matter, it cannot exercise its discretion to extend time for filing an appeal

Court orders

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  1. 1.The application for extension of time to file a third appeal is dismissed
  2. 2.Costs awarded to the respondent, fixed at Shs 150 with the consent of the advocates

The bench

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

EL
majority

Wrote the judgment

Jurisdiction invoked
Section 71A of the Civil Procedure Code as amended by the Schedule to the Statute Law (Miscellaneous Amendments) Act 1978; Sanga v Baya [1973] EA 312

Relief refused

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Extension of time to file an intended third appeal

The Court of Appeal is deprived by statute of jurisdiction to entertain a third appeal, so no question of discretion arises

p. 2

Costs

Application dismissed with costs fixed at Shs 150 with the consent of the advocates concerned

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.

In Sanga v Baya [1973] EA 312, this Court’s predecessor held that the Court of Appeal has no jurisdiction in Kenya to entertain a third appeal.
p. 2No jurisdiction over third appeals
This Court has accordingly been deprived by statute of jurisdiction to entertain a third appeal.
p. 2Statutory ouster of jurisdiction
Having no jurisdiction, no question of any exercise of discretion by me arises.
p. 2No discretion absent jurisdiction
I am accordingly bound to dismiss this application, and I order that it be dismissed, with costs, which with the consent of the advocates concerned in this application, I fix at Shs 150.
p. 2Final orders and costs

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, "Ndeti Muthuka v Ndaisi Muluma [1979] KECA 16 (KLR)", Case Analysis (1979). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1979/16/eng@1979-03-03

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