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Court of AppealDismissedCivil Application No. NAI.155 of 1997 (UR. 63/97)· [1997] KECA 147 (KLR)

Mutia Mithamo & 2 Others v Wilson Kinya Mithamo

Court of Appeal of Kenya
3 July 1997
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The bottom line

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Kenya's Court of Appeal refused to extend time for a third appeal attempt because the applicants hid their earlier failed appeals from the court.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi on an application under Rule 4 of the Court of Appeal Rules for extension of time to file and serve a notice of appeal and record of appeal. The applicants, unsuccessful parties before Tunoi J at Nyeri in an application to vacate an arbitration award in H.C.C.C. No. 158 of 1990, had already had two appeals struck out - Civil Appeal No. 184 of 1993 (struck out on 25 October 1995) and Civil Appeal No. 194 of 1996 (struck out on 15 May 1997) - in each case because the record of appeal lacked a certified copy of the order appealed against. They sought a further extension to start the appellate process de novo. The respondent opposed, contending the applicants were not serious litigants. Bosire, Ag. JA agreed, holding that although the Rule 4 discretion is wide, it must be exercised judicially on evidence and sound legal principles. The applicants had failed to disclose the earlier struck-out appeal, making the application an abuse of process. The court applied its own decision in Elizabeth Kamene Ndolo v George M. Ndolo, which permits a fresh notice of appeal after an appeal is struck out as incompetent, but held that a lack of candour and seriousness disentitles an applicant to the discretion. The application was dismissed with costs to the respondent assessed at Kshs.2,000/=.

Key legal issues

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01

Scope of the Rule 4 discretion to extend time

Holding

The discretion is wide but must be exercised judicially, on evidence and sound legal principles, and is not available to litigants who abuse the court's process

Reasoning

The court acknowledged the breadth of the Rule 4 discretion but held that it is not unfettered. It must be exercised judicially and on the basis of evidence and sound legal principles. The applicants' non-disclosure of a prior struck-out appeal on the same ground rendered the application an abuse of process, justifying refusal of the discretion.

p. 2
02

Effect of lack of candour on extension of time after an appeal struck out as incompetent

Holding

Even where an appeal was struck out (not dismissed) for incompetence, entitling an appellant to seek a fresh notice under Rule 4 per Elizabeth Kamene Ndolo v George M. Ndolo, the court will refuse extension where the appellant is not candid or serious

Reasoning

The court accepted the Ndolo principle that a struck-out appeal (as opposed to a dismissed one) leaves room for a fresh Rule 4 application. However, it distinguished the applicants' case on candour: they had twice had appeals struck out for the same defect and concealed the first appeal from the court, so the discretion was properly withheld.

p. 2

Legal principles established

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  • Although the Rule 4 discretion is wide, it must be exercised judicially on evidence and sound legal principles, and a court should be disinclined to extend time where the applicant is not candid or serious
  • Where an appellant is shown not to be candid or serious in their quest for justice, the court should decline to exercise its discretion in favour of extension of time, even after an appeal struck out as incompetent

Court orders

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  1. 1.The application for extension of time is dismissed
  2. 2.Costs to the respondent assessed at Kshs.2,000/=

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (1)

  • Elizabeth Kamene Ndolo vs. George M. Ndolo
    Civil Appeal No. NAI 104 of 1995 (UR)
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No.158 of 1990
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Mutia Mithamo & 2 Others v Wilson Kinya Mithamo", Case Analysis (1997). Civil Application No. NAI.155 of 1997 (UR. 63/97). Source: 

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