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Court of AppealPartially AllowedCivil Appeal (Application) No. 307 of 2009

Waluke v Wetangula & 2 others (Civil Appeal (Application) 307 of 2009) [2010] KECA 174 (KLR)

Court of Appeal of Kenya
2 July 2010
EOE.O. O'KubasuEGE.M. GithinjiJNJ.G. Nyamu
2,449 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal threw out a late-appeal extension because the lawyer's affidavit explaining the delay was untruthful.

What this practically means

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Executive summary

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This is a ruling of the full Court of Appeal at Nairobi on a Reference under Rule 54(1)(b) against a decision of Visram JA sitting as a single judge, who on 2nd March 2010 had allowed the applicant's extension of time to serve a Notice of Appeal out of time from Muchemi J's ruling of 18th November 2009 in Bungoma H.C. Election Petition No. 1 of 2008, and had deemed the notice as served within time. The 1st respondent argued before the full bench that the single judge's discretion rested on an untruthful affidavit: the process server deponed to searching the Bungoma registry on 29th November 2009, a Sunday when the registry was closed. The applicant's counsel, Mr Kwach, countered that this was 'a storm in a tea cup' since the process server never said he attended court on a Sunday. The full Court restated the standard for interfering with a single judge's Rule 4 discretion - irrelevant considerations, failure to consider relevant ones, misapprehension of evidence or law, or plain wrongness - holding that it is not enough that the full bench would have decided differently. It found the affidavit untruthful, held that the single judge had failed to consider the truthfulness objection raised before him, and further found he had miscalculated the delay as two days when it was in fact ten days, three beyond the seven-day stipulation. The Court allowed the Reference, set aside the single judge's orders, dismissed the notice of motion dated 16th December 2009, and awarded the costs of both the Reference and the motion to the applicant's opponents, to be borne by the applicant.

Questions the Court framed

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

  1. 1.Whether the full Court should interfere with the single judge's discretionary grant under Rule 4 of extension of time to serve the Notice of Appeal out of time
  2. 2.Whether the single judge misapprehended the evidence by failing to consider that the supporting affidavit of the process server was untruthful
  3. 3.Whether the single judge erred in computing the period of delay as two days when it was in fact ten days

Key legal issues

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01

Scope of the full Court's power to interfere with a single judge's Rule 4 discretion on a Reference under Rule 54(1)(b)

Holding

The full Court interferes only where the single judge considered an irrelevant matter, ignored a relevant one, misapprehended the evidence or law, or was plainly wrong; a mere difference of outcome is insufficient.

Reasoning

The Court restated the long-standing standard of review of single-judge discretionary decisions, emphasising that the single judge acts on behalf of the whole Court. Because the discretion is unfettered, the reference is not an opportunity for the full bench to substitute its own view, but to correct errors of principle, misapprehension of evidence or law, or plainly wrong conclusions.

p. 3
02

Effect of an untruthful affidavit supporting an extension-of-time application

Holding

An extension application founded on an obviously incorrect affidavit cannot succeed; the single judge erred by failing to consider the truthfulness objection raised before him.

Reasoning

The Court found the process server's account of attending the Bungoma registry on 29th November 2009, a Sunday, untruthful. Following Mzamil v Ansari, sufficient reason for extension cannot be established on an incorrect affidavit. The single judge had the untruthfulness point raised before him but never considered it, which the Court held would have changed the outcome, justifying interference on the ground of misapprehension or plain wrongness.

p. 4
03

Correct computation of the period of delay

Holding

The single judge erred in computing the delay as two days; excluding the date of filing, service on 4th December 2009 was the tenth day, three days beyond the stipulated seven.

Reasoning

Under rule 3(a) of the Court of Appeal Rules the date of filing of the notice of appeal (24th November 2009) is excluded in counting. Service effected on 4th December 2009 therefore fell on the tenth day, exceeding the seven-day stipulation by three days. This miscomputation was an additional ground for interfering with the single judge's exercise of discretion.

p. 5

Legal principles established

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  • A full Court may interfere with a single judge's Rule 4 discretion only where the single judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence or law, or was plainly wrong; it is not enough that the full Court would have reached a different result.
  • An application for extension of time must be supported by an honest affidavit; sufficient reason cannot be established on the basis of an incorrect or untruthful affidavit.
  • The factors for extension of time are the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent; the list is not exhaustive and the single judge's Rule 4 discretion is otherwise unfettered.

Court orders

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  1. 1.The Reference to the full Court is allowed
  2. 2.The orders of the single judge made on 2nd March 2010 are set aside
  3. 3.An order is substituted dismissing the notice of motion dated 16th December 2009
  4. 4.The costs of the reference and of the motion shall be borne by the applicant, John Koyi Waluke

The bench

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

EO
majority
EG
majority
JN
majority
On appeal from
High Court of Kenya at Bungoma
H.C. Election Petition No. 1 of 2008
Jurisdiction invoked
Reference to the full Court pursuant to Rule 54(1)(b) of the Court of Appeal Rules (Cap. 9), against a single judge's ruling under Rule 4

Relief refused

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Extension of time to serve the Notice of Appeal out of time and deeming of the Record of Appeal as properly filed

The supporting affidavit explaining the delay was untruthful and the delay was in fact ten days, not two; sufficient reason cannot rest on an incorrect affidavit

p. 4

Costs

The costs of this reference and of the motion shall be borne by the applicant, John Koyi Waluke.

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.

It is not enough, for example, to show the full Court that had it been sitting in place of the single Judge, it would have arrived at a different result.
p. 3Standard for full Court interference with single judge discretion
An application seeking exercise of the court's discretion must be supported by an honest explanation. It is a serious matter to mislead the court by untruthful affidavits.
p. 4Honest affidavit required in extension-of-time applications
In view of these inconsistencies and contradictions with which Mr. Asige's affidavit bristles, we do not think the application for extension of time can succeed. Sufficient reason cannot be established on the basis of an obviously incorrect affidavit.
p. 4Sufficient reason cannot rest on incorrect affidavit (Mzamil v Ansari)
In the result, we allow the Reference, set aside the orders of the single Judge made on 2nd March, 2010 and substitute therefor an order dismissing the notice of motion dated 16th December, 2009.
p. 5Final orders of the Court

Issues in the judgment

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minor

The process server's affidavit as reproduced misdates his second visit to the registry ('I did on the 3rd November, 2009' in a narrative about late November 2009), an internal date inconsistency the Court noted in finding the affidavit untruthful

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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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, "Waluke v Wetangula & 2 others (Civil Appeal (Application) 307 of 2009) [2010] KECA 174 (KLR)", Case Analysis (2010). Civil Appeal (Application) No. 307 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/174/eng@2010-07-02

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