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Court of AppealAllowedCivil Appeal (Application) No. 312 of 2010· [2014] KECA 583 (KLR)

Peter Gatahi Kamaitha v Secretary Public Service Commission & 2 others [2014] KECA 583 (KLR)

Court of Appeal of Kenya
3 June 2014
2,612 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal gave a litigant a second chance after a nine-month delay, but imposed strict ten-day deadlines and ordered him to pay costs.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Nyeri by Otieno-Odek, J.A., on a Notice of Motion seeking extension of time to file an application to reinstate Civil Appeal No. 312 of 2010, which had been dismissed for non-attendance on 19th June, 2013 by Visram, Koome and Odek, JJ.A. The applicant and his counsel, Mr. S.M. Mwenesi, explained the delay on the ground that counsel was engaged in an election petition at Homa Bay on the hearing date and that the matter was inadvertently overlooked due to exigencies of office. The 2nd respondent opposed, arguing that the nine-month delay was inordinate and unexplained, that the affidavits violated the Oaths and Statutory Declarations Act, and that no cause list or hearing notice from Homa Bay was annexed. The court applied the settled criteria in Leo Sila Mutiso v Rose and Mongira v Makori, noting that Rule 4 confers an unfettered judicial discretion whose listed factors are not exhaustive. It distinguished between reasons for extension of time (a single judge's province) and reasons for setting aside dismissal (a three-judge bench's province), holding that the evidentiary objections went to the substantive application. Concluding that the respondents would suffer no prejudice since they would be heard by a three-judge bench, and invoking Articles 48 and 159 of the Constitution and the overriding objective, the court allowed the extension, awarded costs to the 2nd respondent, and gave the applicant ten days to file the application to set aside the dismissal order, failing which the motion would stand dismissed with costs.

Key legal issues

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01

Whether the 9-month delay was adequately explained

Holding

A delay of over 9 months is inordinate and requires satisfactory explanation; the applicant's explanation (counsel engaged in an election petition at Homa Bay) was unsupported by any cause list or hearing notice, but merits of that averment are left to the three-judge bench.

Reasoning

The single judge examined the supporting affidavits and found no material before the court to confirm that counsel was indeed before the election court at Homa Bay on 19th June, 2013. However, the judge declined to go into the merits or demerits of counsel's averment, holding that reasons for setting aside the dismissal order are matters for a three-judge bench.

p. 3
02

Distinction between reasons for extension of time and reasons for setting aside dismissal

Holding

Reasons for extension of time are within the jurisdiction of a single judge, while reasons for setting aside a dismissal order are matters for a three-judge bench.

Reasoning

The court emphasized that the application before it was only for leave to extend time to file an application to set aside the dismissal order. Issues raised by the 2nd respondent regarding violation of the Oaths and Statutory Declarations Act and failure to annex cause lists were held to be relevant to the main application to be canvassed before the three-judge bench.

p. 1
03

Whether respondents would suffer prejudice

Holding

No prejudice would be suffered by the respondents if extension is granted, since they will have an opportunity before a three-judge bench to oppose the application for setting aside the dismissal order.

Reasoning

The court reasoned that the 2nd respondent had combined reasons for opposing extension of time with reasons for opposing setting aside. Substantive justice under Article 159 and the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act favours access to the three-judge bench rather than preventing it. Litigation must come to an end when all parties have been heard and substantive justice administered.

p. 4

Legal principles established

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  • In deciding whether to grant an extension of time the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent - and this list is not exhaustive, as Rule 4 gives an unfettered discretion to be exercised judicially.

Court orders

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  1. 1.The application for extension of time is allowed
  2. 2.The applicant shall pay the costs of the application to the 2nd respondent
  3. 3.The applicant has 10 days from the date of the ruling to file the application seeking to set aside the order of 19th June, 2013
  4. 4.In default of filing within 10 days, the Notice of Motion dated 1st April, 2014 shall stand dismissed with costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Interpretation and General Provisions ActSection 59 (Cap 2)
  • Oaths and Statutory Declarations ActSections 6 and 17 (Cap 15)
  • Court of Appeal RulesRules 4, 41, 42, 43, 102 (1), (2) and (3)
  • Constitution of KenyaArticles 48 and 159

Cases cited (2)

  • LEO SILA MUTISO v ROSE
    CAI NAI 255 of 1997 (unreported)
  • MONGIRA & ANOTHER v MAKORI & ANOTHER
    [2005] 2 KLR 103
On appeal from
Court of Appeal of Kenya
Civil Appeal No. 312 of 2010
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and 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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Cite this brief

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Cite this brief

Caselaw, "Peter Gatahi Kamaitha v Secretary Public Service Commission & 2 others [2014] KECA 583 (KLR)", Case Analysis (2014). Civil Appeal (Application) No. 312 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/583/eng@2014-06-03

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