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Court of AppealDismissedCivil Application No. Nai. 329 of 1995

Kithaka Nthakanio v Thathi Nthakanio

Court of Appeal of Kenya
28 October 1997
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The bottom line

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Kenya's Court of Appeal confirmed it will not overturn a single Judge's extension of time unless the applicant proves the Judge ignored relevant facts actually before him.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Tunoi, Shah and Pall, JJ.A.) dismissing a reference to the full Court against a decision of a single Judge who had granted the respondent an extension of time under rule 4 of the Court's Rules to lodge a Notice of Appeal and record of appeal. The appeal lay from a judgment of the High Court at Meru (Oguk, J.) dated 12 July 1990 in H.C.C. Appeal No. 97 of 1988. The applicant contended that the single Judge had failed to consider a relevant matter: that judgment had been entered in terms of the award in July 1990, so that extending time would be futile and prejudicial in light of Order 45 rule 17(2) of the Civil Procedure Rules. The full Court noted that the single Judge had expressly found it unclear whether judgment had been entered, the record being deficient on that point. The applicant then sought to introduce additional evidence before the full Court to prove entry of judgment, but the Court held that rule 54(2) expressly prohibits additional evidence at a full Court hearing. Concluding that the single Judge had arrived at a correct decision on the material before him, the Court dismissed the reference with costs to the respondent assessed at Shs.1,000/=. The single Judge's extension of time therefore stands affirmed, and the respondent may perfect his appeal.

Questions the Court framed

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

  1. 1.Whether the learned single Judge, in granting the respondent extension of time to lodge the Notice of Appeal and record of appeal, failed to take into account a relevant matter, namely that judgment had been entered in terms of the award in July 1990
  2. 2.Whether additional evidence could be introduced before the full Court to show that judgment had been entered

Key legal issues

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01

Whether the single Judge's discretion under rule 4 was wrongly exercised by omitting to consider that judgment had been entered in terms of the award

Holding

The reference fails because it was not shown to the single Judge's satisfaction that judgment had been entered; he could not be said to have ignored a relevant matter that was not established on the material before him.

Reasoning

The applicant argued that entry of judgment in July 1990 in terms of the award made any extension of time an exercise in futility under Order 45 rule 17(2) of the Civil Procedure Rules. However, the single Judge expressly found the record deficient on whether judgment had been entered. A discretion cannot be impugned for ignoring a fact that was not demonstrated before the decision-maker. The full Court therefore found no basis to interfere with the exercise of discretion.

p. 1
02

Whether the applicant could introduce additional evidence before the full Court to prove entry of judgment

Holding

Additional evidence is expressly prohibited at a full Court hearing under rule 54(2) of the Court of Appeal Rules, so the applicant's attempt to prove entry of judgment by new evidence was impermissible.

Reasoning

The applicant sought to introduce evidence before the full Court showing that judgment had been entered in terms of the award. The Court held that rule 54(2) of the Rules of this Court expressly bars additional evidence at a full Court hearing such as the reference before it. The reference therefore had to be determined on the same material that was before the single Judge, which doomed the applicant's argument.

p. 1

Legal principles established

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  • No additional evidence may be adduced at a hearing before a full Court on a reference under rule 54
  • A reference against a single Judge's rule 4 extension-of-time decision will fail unless the applicant shows the single Judge failed to take into account a relevant matter on the material actually before him; the discretion is reviewed on the material that was before the single Judge

Court orders

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  1. 1.The reference to the full Court is dismissed
  2. 2.Costs to the respondent assessed at Shs.1,000/=

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Meru
H.C.C. Appeal No. 97 of 1988
Jurisdiction invoked
Rules of this Court, rules 4 and 54(1)(b) (reference to full Court against decision of a single Judge)

Relief refused

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Applicant's request that the full Court vary, discharge or reverse the single Judge's decision granting extension of time

The single Judge's discretion was properly exercised on the material before him; it was not shown to him that judgment had been entered in terms of the award, and no additional evidence was permissible on the reference

p. 1

Costs

The reference is dismissed with costs to the respondent assessed at Shs.1,000/=.

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.

This is a reference to full Court against the ruling of the learned single Judge of this Court whereby he exercised his discretion under rule 4 of the Rules of this Court in favour of the respondent and granted him extension of time for lodging the Notice of Appeal and the record of appeal.
p. 1Nature of the reference under rule 54(1)(b)
But rule 54(2) of the Rules of this Court expressly says that no additional evidence shall be adduced at a full court hearing like the one before us.
p. 1Bar on additional evidence at full Court hearing
On the material before him, the learned single judge arrived at a correct decision and we see no reason to think otherwise. This reference is accordingly dismissed with costs to the respondent assessed at Shs.1,000/=.
p. 1Disposition - reference dismissed 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, "Kithaka Nthakanio v Thathi Nthakanio", Case Analysis (1997). Civil Application No. Nai. 329 of 1995. Source: 

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