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Court of AppealDismissedCivil Application (Motion dated 18th February 2014)· [2014] KECA 354 (KLR)

Jimmy Musyoki Kilonzo v John Kyalo Kilonzo & 2 others [2014] KECA 354 (KLR)

Court of Appeal of Kenya
3 October 2014
2,421 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time for an appeal, confirming that choosing review forfeits the right to appeal the original decision.

What this practically means

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Executive summary

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This was a single-Judge application before the Court of Appeal at Nairobi under Rule 4 of the Court of Appeal Rules, in which Jimmy Musyoki Kilonzo sought extension of time to file and serve a notice of appeal and record of appeal out of time against a ruling of Makhandia J. delivered on 6th July 2012 in a succession dispute over the estate of the late Samson Kilonzo Nthei. Prayers for injunction and leave operating as stay were struck out as not lying before the Court on such an application. Waki JA first observed that the application was in principle a non-starter: having been aggrieved by the ruling, the applicant had elected to seek its review, which was heard and dismissed by Jaden J. on 4th September 2013, and under Section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules a party who chooses review loses the right of appeal against the original order, following Anthony Gachara Ayub v. Francis Mahinda Thinwa. The Judge nonetheless considered the merits, restating the settled Rule 4 factors from Fakir Mohamed v Joseph Mugambi and the earlier authorities, and noting that Sections 3A and 3B of the Appellate Jurisdiction Act enrich rather than uproot those principles. The delay of over one and a half years was held inordinate and only partially explained; no notice of appeal or draft memorandum was exhibited, and no certificate of delay was produced. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether election of the review remedy bars a subsequent appeal against the original order

Holding

A party aggrieved by an order must elect between appeal and review; having chosen review, the right of appeal against the original order is exhausted, though the review decision itself is appealable.

Reasoning

Reading Section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules, the court held that allowing both remedies to be exercised sequentially or simultaneously would make no sense of the law. The applicant invoked review of Makhandia J.'s ruling and lost before Jaden J., thereby exhausting his choice. Only an appeal against the review decision would now lie, not the original ruling.

p. 3
02

Whether the discretion under Rule 4 should be exercised to extend time

Holding

The discretion was refused: the delay of over one and a half years was inordinate, partly unexplained, and the applicant's conduct did not merit favourable treatment.

Reasoning

The applicant blamed his former advocate, but even accepting that, no explanation covered the period after copies of proceedings were applied for on 20th September 2013 until the motion of 20th February 2014. No certificate of delay was exhibited, no notice of appeal was filed, and no draft memorandum was exhibited to show the seriousness of the intended appeal. Delay defeats equity.

p. 5

Legal principles established

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  • A party who chooses to proceed by way of review of an order loses the right of appeal against that order, and cannot revert to appeal once the review option fails.
  • Extension of time under Rule 4 is a judicial discretion exercised on relevant factors including delay, reasons for delay, chances of the appeal succeeding, and prejudice to the respondent.
  • The enhanced discretion under Sections 3A and 3B of the Appellate Jurisdiction Act does not displace established Rule 4 principles but enriches them.

Court orders

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  1. 1.Prayers 2 and 5 of the motion (injunction and stay) struck out as they do not lie for consideration before the Court
  2. 2.The application for extension of time dismissed
  3. 3.Costs of the application to the respondents

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 80
  • Civil Procedure RulesOrder 45(1)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 4

Cases cited (7)

  • Anthony Gachara Ayub v. Francis Mahinda Thinwa [2014] eKLR
    [2014] eKLR
  • Fakir Mohamed v Joseph Mugambi & 2 others Civil Appl. No. 332/04 (ur)
  • Mutiso vs Mwangi Civil Appl. NAI. 255 of 1997 (ur)
  • Mwangi vs. Kenya Airways Ltd [2003] KLR 486
    [2003] KLR 486
  • Major Joseph Mwereri Igweta vs. Murika M'Ethare & Attorney General Civil application. NAI. 8/2000 (ur)
  • Murai v. Wainaina (No. 4) [1982] KLR 38
    [1982] KLR 38
  • City Chemist (NBI) & 2 Others v. Oriental Commercial Bank Ltd Civil Appl. NAI. 302 of 2008 (ur)
On appeal from
High Court of Kenya at Machakos
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, with Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jimmy Musyoki Kilonzo v John Kyalo Kilonzo & 2 others [2014] KECA 354 (KLR)", Case Analysis (2014). Civil Application (Motion dated 18th February 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/354/eng@2014-10-03

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