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Court of AppealAllowedReference arising from Civil Appeal No. 124 of 2004· [2015] KECA 597 (KLR)

Habo Agencies Ltd v Musingo (Civil Appeal 124 of 2004) [2015] KECA 597 (KLR)

Court of Appeal of Kenya
3 July 2015
EGE.M. GithinjiHOH.M. OkwenguFSF. Sichale
1,923 words in judgment
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The bottom line

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Kenya's Court of Appeal restored a company's dismissed appeal, ruling that time limits run from when a party actually learns their appeal was dismissed if service cannot be verified.

What this practically means

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Executive summary

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The full Court of Appeal (Githinji, Okwengu and Sichale, JJA) allowed a reference against the ruling of Waki, JA, who had dismissed an application for extension of time to apply for restoration of Civil Appeal No. 124 of 2004, an appeal dismissed for non-attendance under Rule 102(1) of the Court of Appeal Rules after the applicant's advocates did not attend a hearing on 5th February 2013. The applicant, who deponed that it learnt of the dismissal only in about March 2014, lodged the Rule 4 extension application in June 2014 through new advocates. The single judge found the delay unexplained and the applicant not candid, and noted the prejudice to the decree-holder. The full Court held that a reference is not an appeal and interference lies only for misdirection or non-direction, but found three such misdirections: first, that the hearing notice allegedly served was never availed to the single judge and the applicant's former advocates denied ever seeing it, so under Rule 102(3) time should have been computed from March 2014 when the applicant first heard of the dismissal; second, failure to consider the merits of the dismissed appeal, which raised the arguable point that a backdated claim for interest at 25% per annum was special damage requiring pleading and proof; and third, a finding of consensual release of decretal funds made without evidence. The reference was allowed, the single judge's ruling set aside, the extension application allowed, and the restoration application deemed filed within time, with costs reserved to the pending restoration application.

Key legal issues

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01

Principles governing extension of time under Rule 4 of the Court of Appeal Rules

Holding

The discretion to extend time is unfettered; the Court considers the merits of the appeal, prejudice to the respondent, the length of and reasons for the delay, guided by the overriding objective and Article 159(2)(d).

Reasoning

The Court reiterated the Wasike v Swala factors in descending order of importance but emphasised that section 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution, embodying substantial justice free of procedural technicality, are now paramount and must be given due weight in every exercise of the Rule 4 discretion.

p. 3
02

Computation of time under Rule 102(3) where service of the hearing notice is unverified

Holding

Where non-service is raised and the record does not verify service, time runs from the applicant's first hearing of the dismissal; an uncontroverted deponement that the applicant learnt of the dismissal in March 2014 stood.

Reasoning

Although the Court had recorded that the hearing notice was served on the applicant's advocates, the notice itself was not availed to the single judge, and the former advocates' letter of 11th March 2014 stated they had never seen it. The respondent filed no replying affidavit, so the applicant's account was uncontroverted and should have been credited.

p. 3
03

Scope of a reference from a single judge's decision

Holding

The Court may interfere with a single judge's exercise of discretion only for misdirection or non-direction; it found such misdirections here (on candour, on merits, and on the consensual release of decretal funds).

Reasoning

The Court identified three misdirections: the finding that the applicant was not candid; the failure to consider the merits of the dismissed appeal on a prima facie basis and the risk of grave injustice; and the finding that part of the decretal amount was released with the consent of both parties, which lacked evidential foundation.

p. 3

Legal principles established

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  • A reference is not an appeal; the Court will only interfere with a single judge's exercise of discretion for misdirection or non-direction, not because it would have exercised the discretion differently.
  • Where service of a hearing notice is challenged and not verified from the court record, the time for applying for restoration under Rule 102(3) runs from the date the applicant first heard of the dismissal.
  • In exercising the discretion to extend time the Court must give due weight to the overriding objective and Article 159(2)(d), and must consider the merits of the appeal, prejudice to the respondent, the length of and reasons for the delay.

Court orders

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  1. 1.The reference is allowed
  2. 2.The ruling of the single judge is set aside
  3. 3.The application for extension of time is allowed, with the result that the application for restoration of the appeal for hearing is deemed as filed within time
  4. 4.The costs of the application for extension of time and the costs of the reference shall be costs in the pending application for restoration of the appeal for hearing

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 101 (proviso and sub-rule 3)
  • Court of Appeal RulesRule 102(1)
  • Court of Appeal RulesRule 102(3)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (2)

  • Wasike v Swala
    [1984] KLR 91
  • Kimani v. Attorney-General
    [1969] EA 502
On appeal from
Court of Appeal of Kenya (decision of a single judge)
Application under Rule 4 in Civil Appeal No. 124 of 2004
Jurisdiction invoked
Reference against the decision of a single judge under the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Habo Agencies Ltd v Musingo (Civil Appeal 124 of 2004) [2015] KECA 597 (KLR)", Case Analysis (2015). Reference arising from Civil Appeal No. 124 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/597/eng@2015-07-03

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