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Court of AppealDismissedCivil Appli 345 of 2005

John Francis MuyodiI v Busia County Council & 3 others [2009] KECA 86 (KLR)

Court of Appeal of Kenya
23 October 2009
ROR.S.C. OmoloEGE. M. GithinjiJNJ. G. Nyamu
936 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a land dispute appeal because the owner waited over two and a half years to file and lacked letters of administration at the start.

What this practically means

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Executive summary

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This was a reference to the full Court under Rule 54(1)(b) of the Court of Appeal Rules from the ruling of a single Judge (Aganyanya, J.A.) who had dismissed the applicant's application under Rule 4 for extension of time to file a notice of appeal and record of appeal against the judgment of Mitey, J (High Court, Bungoma) dated 8th May 2003, which had dismissed the applicant's suit (H.C.C. No. 108 of 2000 (O.S.)) for want of capacity, the applicant not having obtained letters of administration to the estate of his deceased father. The underlying claim concerned land parcel Marachi/Elukhari/944 on which Butula market stands, allegedly grabbed by the respondents. The full Court held that on a reference it is not concerned with the correctness of the single Judge's decision on the merits, but only with whether the discretion was exercised judicially, citing Mbogo v Shah, The Fancois Vieljeut and Mrao Limited. The applicant, appearing in person, submitted only on the merits of the suit and intended appeal and did not show that the single Judge failed to consider relevant matters, considered irrelevant matters, or erred in principle. The application for extension of time had been lodged over 2½ years after the ruling, a long and inexcusable delay partly caused by the applicant abandoning the appellate process to pursue other remedies in the High Court. The Court further held the application was incompetent because the applicant had no grant of letters of administration when he instituted it; the grant obtained on 12th February 2009 does not relate back to the date of institution. The reference was dismissed with no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the single Judge (Aganyanya, J.A.) exercised his discretion judicially in dismissing the application for extension of time to file the notice of appeal and record of appeal
  2. 2.Whether the reference to the full Court should be allowed

Key legal issues

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01

Whether the single Judge exercised his discretion judicially in refusing extension of time

Holding

The single Judge did exercise his discretion judicially; the applicant failed to demonstrate any error of principle, irrelevant consideration or omission of relevant matters

Reasoning

The full Court on a reference confines itself to the manner of exercise of discretion, not the merits. The applicant's written submissions addressed only the merits of the suit and intended appeal, not the exercise of discretion. The delay of over 2½ years in bringing the application was long and inexcusable, the applicant having abandoned the appeal process by pursuing a different form of jurisdiction in the High Court.

p. 2
02

Whether the application was competent in the absence of a grant of letters of administration at institution

Holding

The application was incompetent because the applicant, suing on behalf of his deceased father's estate, had no grant at the time of institution; the later-obtained grant does not relate back

Reasoning

The applicant's suit had been dismissed for want of capacity as he lacked letters of administration for the estate of his deceased father. Although he eventually obtained a grant on 12th February 2009, a grant obtained after institution does not in law relate back to the date of institution of the application, so the defect could not be cured retrospectively.

p. 2

Legal principles established

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  • On a reference from a single Judge's decision on extension of time, the full Court is concerned only with whether the single Judge exercised discretion judicially, not with the merits of that decision
  • A grant of letters of administration obtained after the institution of proceedings does not relate back to the date of institution
  • An appellate court will interfere with a judge's exercise of discretion only where relevant matters were not considered, irrelevant matters were considered, or the judge erred in principle

Court orders

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  1. 1.The reference to the full Court is dismissed with no orders as to costs

The bench

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

RO
majority
EG
majority
JN
majority
On appeal from
High Court of Kenya at Bungoma
H.C.C. Suit No. 108 of 2000 (O.S.)
Jurisdiction invoked
Reference to full Court under Rule 54(1)(b) of the Court of Appeal Rules from the ruling of a single Judge under Rule 4 of the Court of Appeal Rules

Relief refused

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Extension of time to file the notice of appeal and record of appeal

Inexcusable delay of over 2½ years; the single Judge exercised discretion judicially; the application was also incompetent for want of letters of administration at institution

p. 2

Costs

The reference is dismissed with no orders as to costs

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.

For those reasons, the reference has no merit. We dismiss it with no orders as to costs.
p. 2Final orders - dismissal of the reference
we are not concerned with whether the learned single Judge reached the correct decision on the merits of the application. Rather, we are only concerned with whether the learned single Judge exercised his discretion judicially
p. 2Scope of reference under Rule 54(1)(b)
The grant does not in law relate back to the date of the institution of the application.
p. 2Effect of belated grant of letters of administration
The application for extension of time was filed over 2½ years after the Ruling of Mitey, J. This was a long and inexcusable delay.
p. 2Inordinate delay
His action to move from this Court to another was the cause for the delay in filing the notice of appeal but not a good reason to grant an extension of time
p. 2Abandonment of appellate process as a cause of delay

Issues in the judgment

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minor

The lower court case is styled inconsistently - 'H.C.C.Suit No. 108 of 2000 (O.S.)' in the coram heading but 'H.C.C.C. No. 108 of 2000 (O.S.)' in the body of the ruling

minor

The statute is misspelled in the judgment as 'Appallate Jurisdiction Act'

minor

The judgment contains a typographical error in the heading ('Aapplication for extension of time') and inconsistent characterisation of the proceedings below - the suit was 'dismissing the application' in one passage though it was the suit that was dismissed

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (24)

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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, "John Francis MuyodiI v Busia County Council & 3 others [2009] KECA 86 (KLR)", Case Analysis (2009). Civil Appli 345 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/86/eng@2009-10-23

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