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Court of AppealDismissedCivil Appli. Nai 277 of 2006· [2008] KECA 129 (KLR)

Joseph Muriithi Njiru v Teresia Wanja Raymond [2008] KECA 129 (KLR)

Court of Appeal of Kenya
23 May 2008
ROR. S. C. OmoloPhilip Kiptoo TunoiP. K. TunoiEOE. O. O'Kubasu
772 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal reference filed just one day late, confirming strict seven-day deadlines are enforced to the letter.

What this practically means

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Executive summary

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This was a full-Court reference from a decision of a single Judge of the Court of Appeal at Nyeri, in which Joseph Muriithi Njiru sought an extension of time to file a notice and record of appeal from orders of the High Court at Embu (Omwitsa, J) dated 15th February 2001 in H.C.C.C. No. 24 of 1999. The respondent raised a preliminary objection that the reference itself was lodged out of time and without leave. Applying rule 54(1)(b) of the Court's Rules, the Court held that a party must either informally inform the single Judge immediately of an intention to refer the matter to the full Court, or within seven days write to the Deputy Registrar. Applying rule 3(a), which excludes the first day, the Court computed that the seven days from the single Judge's decision of 25th October 2007 expired on 1st November 2007; the reference was filed on 2nd November 2007, one day late and without leave, and was therefore incompetent. In the alternative, the Court held the reference would fail on its merits: the applicant had conceded a further ninety-day delay which the single Judge found wholly unexplained. Although the single Judge went on to consider other factors, once the delay was unexplained those considerations were unnecessary; his discretion under rule 4 was unfettered, properly exercised, and free of any misdirection. The Court affirmed the single Judge's decision, struck out the reference, and awarded costs to the respondent.

Key legal issues

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01

Computation of the seven-day period for referring a single Judge's decision to the full Court

Holding

The seven-day period under rule 54(1)(b) starts to run the day after the decision is made, per rule 3(a) of the Court's Rules. The letter seeking reference, filed on 2nd November 2007 after a decision of 25th October 2007, was one day out of time; the reference was incompetent.

Reasoning

The court applied rule 3(a) which excludes the first day in computing time. The decision was made on 25th October 2007; counting from 26th October, seven days ended on 1st November 2007. The court checked the calendar and confirmed 1st November 2007 was a Thursday and not a public holiday, so the reference filed on 2nd November was one day late and, having been lodged without leave, was incompetent and had to be struck out.

p. 1
02

Exercise of the single Judge's unfettered discretion under rule 4 in refusing extension of time

Holding

The single Judge properly exercised his discretion: he took into account relevant factors, no irrelevant factor, and no error was shown. An appellate court will not interfere with such a discretionary decision absent proof of improper exercise.

Reasoning

The applicant conceded he waited another ninety days after his appeal was struck out before lodging his extension application. The single Judge found no explanation for that delay. Although he went on to consider other matters such as the prospects of the intended appeal and prejudice to the respondent, once the delay was found wholly unexplained those considerations were unnecessary. Nothing on the record suggested misdirection, and counsel for the applicant identified no basis for interference.

p. 2

Legal principles established

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  • Under rule 54(1)(b) of the Court of Appeal Rules, a party wishing to refer a single Judge's decision to the full Court must either informally inform the Judge immediately the decision is given, or within seven days of the decision write to the Deputy Registrar asking that the decision be referred to the full Court; a reference lodged outside that period without leave is incompetent and must be struck out.
  • Where an applicant's delay before seeking extension of time is wholly unexplained, it is unnecessary to consider other factors such as the chances of the intended appeal succeeding or prejudice to the respondent.

Court orders

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  1. 1.The reference be and is hereby struck out
  2. 2.The costs of the reference to be paid to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 54(1)(b)
  • Court of Appeal RulesRule 3(a)
  • Court of Appeal RulesRule 4
On appeal from
High Court of Kenya at Embu
H.C.C.C. No. 24 of 1999
Jurisdiction invoked
Rule 54(1)(b) of the Court of Appeal Rules (reference from a decision of a single Judge); 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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Later judgments citing this (20)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Muriithi Njiru v Teresia Wanja Raymond [2008] KECA 129 (KLR)", Case Analysis (2008). Civil Appli. Nai 277 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/129/eng@2008-05-23

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