M.A v M.A [2014] KECA 466 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it will rarely overturn a single judge's procedural decisions, and won't accept new evidence on a reference.
What this practically means
#Executive summary
#Key legal issues
#Standard of interference with a single judge's discretionary decision on reference
The full court cannot substitute its own discretion for that of the single judge; it may interfere only on established grounds of misdirection or where the decision is plainly wrong causing misjustice.
The court adopted the Mbogo v Shah test: interference is warranted only where the single judge misdirected himself on some matter and arrived at a wrong decision, or where it is manifest from the case as a whole that he was clearly wrong in the exercise of discretion and misjustice resulted. Misdirection includes failing to take into account a relevant matter, taking into account an irrelevant matter, misunderstanding the law, or a plainly wrong decision.
Admissibility of new material on a reference
New evidence submitted for the first time on a reference is inadmissible under Rule 55(2) of the Rules.
The applicant sought to rely on 'submissions on appeal' containing allegations of threats to her life. The court held that document was not before G.B.M. Kariuki JA and therefore amounted to new evidence contrary to Rule 55(2), which prohibits additional evidence at the hearing of an application previously decided by a single judge. The court accordingly excluded it from consideration.
Rescission of a dismissal under Rule 56(1) and sufficiency of cause
A single judge properly refused to rescind an order dismissing an application for extension of time where the rescission application was filed far beyond the 30 days allowed by Rule 56(4) with no explanation and where candour was lacking.
G.B.M. Kariuki JA found the rescission application filed well outside the 30 days prescribed by Rule 56(4), with no explanation for the delay, and that the applicant was not candid about when she learned of the dismissal. The full court found all these relevant factors were considered, that the applicant's unrepresented status was taken into account, and no error of principle was disclosed warranting interference.
Legal principles established
#- A reference from a single judge is not an appeal; the full court may interfere with a single judge's discretionary decision only where the judge misdirected himself, failed to consider a relevant matter, considered an irrelevant matter, or the decision is plainly wrong resulting in misjustice
- At the hearing of a reference, no additional evidence shall be adduced, per Rule 55(2) of the Court of Appeal Rules, 2010
- The onus is on the applicant on a reference to satisfy the full court that the single judge did not exercise his discretion judiciously
Court orders
#- 1.The reference is dismissed with costs to the respondent
- On appeal from
- Court of Appeal (single judge reference)
- Notice of Motion dated 16th September 2013 in Civil Application; underlying H.C.D.C. No. 73 of 1985
- Jurisdiction invoked
- Rule 55(1) of the Court of Appeal Rules, 2010 (reference from the decision of a single judge, under the proviso to section 5 of the Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M.A v M.A [2014] KECA 466 (KLR)", Case Analysis (2014). Civil Application No. NAI. 245 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/466/eng@2014-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.