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Court of AppealDismissedCivil Application No. 248 of 2008 (UR 158/2008)· [2009] KECA 63 (KLR)

Esposito Franco v Amason Kingi Jeffah & 2 others

Court of Appeal of Kenya
16 October 2009
SBS.E.O BosireJOJ.W. Onyango OtienoJNJ.G. Nyamu
1,096 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled it will not overturn another judge's discretionary decision to extend appeal time limits unless the judge made a clear, demonstrable error.

What this practically means

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Executive summary

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This is a ruling of a full bench of the Court of Appeal on a reference against a decision of O'Kubasu J.A, who had allowed Esposito Franco's application under rule 4 of the Court of Appeal Rules for extension of time to serve a notice of appeal and to file and serve a record of appeal. The applicant's election petition challenging the election of Amason Kingi Jeffah as MP for Magarini Constituency had been struck out by the High Court at Malindi (Ombija J) because the petition was not served within the stipulated period under the National Assembly and Presidential Elections Act, Cap 7. The respondents, including Amina Kale and the Electoral Commission of Kenya (now replaced by the Interim Independent Electoral Commission), contended that the single judge failed to exercise his discretion according to law. The full court reaffirmed the settled principle from Mbogo v Shah that a reference from a decision based on judicial discretion may be interfered with only where the judge misdirected himself and arrived at a wrong decision, was clearly wrong in the exercise of discretion causing misjustice, took into account irrelevant matters, or failed to take into account relevant matters. Finding that the single judge had correctly applied the principles in Leo Sila Mutiso, considered the reasons for the delay and the absence of prejudice, the court declined to substitute its own view and dismissed the reference with costs to the applicant, payable by the 1st respondent. The ruling was stated to apply equally to the companion Civil Application No. 249 of 2008.

Key legal issues

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01

The standard for interfering with the exercise of judicial discretion under rule 4

Holding

The full court may interfere only where the single judge misdirected himself, was clearly wrong, took into account irrelevant matters, or failed to take into account relevant matters.

Reasoning

Applying Mbogo v Shah, the court held that a decision based on judicial discretion is not to be disturbed on appeal merely because the appellate court would have reached a different result. The discretion must have been exercised according to law; the applicants for the reference did not demonstrate any misdirection, irrelevancy or failure to consider relevant material in the single judge's ruling.

p. 2
02

Application of the rule 4 principles to the facts

Holding

The single judge correctly considered the reasons given for the delay (mistake of previous counsel and delay in furnishing proceedings) and the absence of prejudice, and no relevant factor was ignored.

Reasoning

The court found the single judge had reminded himself he was exercising judicial discretion and had set out the correct principles from Leo Sila Mutiso. He addressed both reasons advanced for the delay. Although he did not expressly excuse the delay in serving the notice of appeal, that conclusion was inevitable from his approach, and the full court could not fault it.

p. 2

Legal principles established

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  • An appellate court may not interfere with a single judge's exercise of judicial discretion under rule 4 unless the judge misdirected himself and arrived at a wrong decision, or was clearly wrong in the exercise of discretion resulting in misjustice, or took into account irrelevant matters or failed to take into account relevant matters.
  • The extent to which the full Court may interfere with a single judge's exercise of discretion is circumscribed; the full court will not substitute its own view of what it would have decided.

Court orders

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  1. 1.The reference to the full court is dismissed
  2. 2.Costs of the reference awarded to the applicant, to be paid by the 1st respondent in the rule 4 application
  3. 3.The ruling applies equally to Civil Application No. 249 of 2008
On appeal from
High Court of Kenya at Malindi
Election Petition No. 1 of 2008
Jurisdiction invoked
Reference to the full court from a single judge's ruling under rule 4 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Esposito Franco v Amason Kingi Jeffah & 2 others", Case Analysis (2009). Civil Application No. 248 of 2008 (UR 158/2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/63/eng@2009-10-16

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