Moses Masika Wetangula v John Koyi Waluke & 2 others [2008] KECA 59 (KLR)
The bottom line
#Kenya's Court of Appeal gave an MP a second chance to file his election appeal, ruling that a lawyer's honest mistake shouldn't close the courthouse door.
What this practically means
#Executive summary
#Key legal issues
#Applicability of rule 4 to election petition appeals
Rule 4 of the Court of Appeal Rules applies to election petition appeals; the statutory appeal period in section 23(4) of Cap. 7 only ousts rule 81(1) and does not exclude the extension power, reinforced by section 59 of the Interpretation and General Provisions Act.
The court relied on its earlier ruling of 17 October 2008, which held that section 23(4) of the National Assembly and Presidential Elections Act only displaces rule 81(1) and that the remaining Court of Appeal Rules, including rule 4, continue to govern election appeals. Section 59 of Cap. 2 further permits extension of a prescribed time even where the application is made after expiry of that time, unless a contrary intention appears in the statute, which the court found absent here.
Exercise of the rule 4 discretion where the delay stems from counsel's mistake
The discretion under rule 4 is unfettered and is exercised on the established factors; a counsel's inadvertent mistake in filing the record without a certified copy of the order does not disqualify an otherwise deserving applicant.
The applicant had lodged his appeal within the 30-day period prescribed by section 23(4) and had thereby 'arrived' in the Court of Appeal; the appeal was struck out on a technical point, not on the merits. Citing Patel v Waweru, Leo Sila Mutiso and the Murai line of authority, the judge held that counsel's mistake should not close the door of justice and that the application, filed promptly after the striking out, deserved a favourable exercise of discretion.
Legal principles established
#- Rule 4 of the Court of Appeal Rules applies to election petition appeals; section 23(4) of the National Assembly and Presidential Elections Act only ousts rule 81(1) and does not exclude the court's power to extend time under rule 4 read with section 59 of the Interpretation and General Provisions Act.
- In deciding whether to extend time under rule 4, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- A mistake by counsel is not, by itself, a reason to deny an otherwise deserving applicant a favourable exercise of discretion on an extension-of-time application.
Court orders
#- 1.Leave granted to the applicant to lodge afresh a notice of appeal, time extended by 7 days from the date of the ruling
- 2.Leave granted to lodge the record of appeal within 7 days from the date the notice of appeal is filed
- 3.The record of appeal used in the former appeal (Civil Appeal No. 108 of 2008) to be re-used as the record in the intended appeal, supplemented by inclusion of a certified copy of the order appealed from
- 4.Costs of the application awarded to the respondents as costs in the appeal in any event
- On appeal from
- High Court of Kenya at Bungoma
- Election Petition No. 1 of 2008
- Jurisdiction invoked
- Rules 4 and 42 of the Court of Appeal Rules (Cap. 9) and section 59 of the Interpretation and General Provisions Act (Cap. 2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Masika Wetangula v John Koyi Waluke & 2 others [2008] KECA 59 (KLR)", Case Analysis (2008). Civil Application (arising from Civil Appeal No. 108 of 2008, formerly Civil Appeal No. 5 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/59/eng@2008-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.