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Court of AppealAllowed

Mwanzo Shirandula v Marko Mukhweso [1987] KECA 26 (KLR)

Court of Appeal
27 March 1987
412 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that judges deciding late appeals must consider all circumstances, like lost records and imprisonment, not just the delay's length.

What this practically means

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Executive summary

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The Court of Appeal allowed an appeal against a High Court order of October 18, 1985 refusing the appellant leave to appeal out of time under section 79G of the Civil Procedure Act. That section requires an appeal to be lodged within 30 days, excluding time certified as requisite for preparing and delivering a copy of the decree or order, with a proviso permitting admission of an appeal out of time on good and sufficient cause. The Court identified two factors of particular importance which the High Court had ignored: the record of the proceedings in the lower court had been lost, making certification difficult, and the appellant had been jailed for two months in execution of the decree. The respondent complained that the supporting affidavit lacked the dates needed to explain the delay, but the Court held that the appellant could not supply such details without the record, and the point had not been raised in the respondent's affidavit in reply. The judge had considered only the date of judgment and the inordinate delay, taking no account of events thereafter or of the merits. Because of these misdirections and no-directions, the judge failed to exercise his discretion judicially. The Court allowed the appeal, granted the appellant 30 days to file his appeal based on the skeleton record and other obtainable documents, and awarded the appellant the costs of the appeal and of the application in the lower courts. Judgment delivered March 27, 1987 by Nyarangi, Gachuhi and Apaloo JJ A.

Questions the Court framed

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

  1. 1.Whether the High Court judge correctly refused the appellant's application for leave to appeal out of time under section 79G of the Civil Procedure Act
  2. 2.Whether the loss of the record of proceedings and the appellant's imprisonment in execution of the decree constituted good and sufficient cause for the delay in filing the appeal

Key legal issues

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01

Whether the judge exercised his discretion judicially in refusing extension of time

Holding

The judge misdirected himself and failed to direct himself on material matters - the loss of the record of proceedings and the appellant's two-month imprisonment - and therefore did not exercise his discretion judicially.

Reasoning

Section 79G requires an appeal within 30 days, excluding time certified for preparation of copies, but the proviso permits extension on good and sufficient cause. Here the record was lost, making certification difficult, and the appellant was jailed for two months in execution of the decree. The judge considered only the inordinate delay, ignoring these factors, and the objection to the affidavit's lack of dates was never raised in reply and could not be sustained where the record was unavailable.

p. 2
02

Whether the affidavit's lack of dates justified refusal

Holding

The complaint that the supporting affidavit lacked all necessary dates could not stand, since the appellant could not supply details without the record, and the respondent did not raise the objection in his affidavit in reply.

Reasoning

The respondent argued the affidavit lacked dates, but the loss of the record meant the appellant could not provide them. Moreover, the point was not taken in the respondent's affidavit in reply, so it was unfair to found the refusal on it. The court held the delay may not have been the appellant's fault at all and the application should have been allowed on the whole matrix of circumstances.

p. 2

Legal principles established

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  • In an application for extension of time to appeal, a court must consider the circumstances beyond the date of judgment, including loss of the record and factors beyond the applicant's fault, rather than relying solely on the length of delay.
  • Where a judge ignores material factors and fails to decide on the merits, the discretion has not been exercised judicially and the appellate court may interfere.

Court orders

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  1. 1.Appeal allowed
  2. 2.Appellant granted 30 days to file his appeal based on the skeleton record and such other documents as he can obtain
  3. 3.Appellant awarded costs of this appeal and of the application in the lower courts

The bench

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

majority
majority
AP
majority
On appeal from
High Court
Jurisdiction invoked
Appeal against the order of the High Court refusing leave to appeal out of time under section 79G of the Civil Procedure Act

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.

Two factors are of particular importance in this case. The record of the proceedings was lost. That meant that the lower court would find it difficult to make the certification. Secondly the appellant was put in jail for two months in execution of the decree. These matters were ignored by the High Court.
p. 2material factors ignored by the High Court
Because of the misdirection and no-directions, the judge did not exercise his direction judicially.
p. 2judicial discretion not exercised
We allow the appellant 30 days to file his appeal based on the skeleton record and such other documents as he can obtain. The appellant will have the costs of this appeal and of the application in the lower courts.
p. 2final orders

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, "Mwanzo Shirandula v Marko Mukhweso [1987] KECA 26 (KLR)", Case Analysis (1987). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/26/eng@1987-03-27

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