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Court of AppealDismissedCivil Application No. Nai. 161 of 2015· [2016] KECA 211 (KLR)

Muraya Wandungu v Naomi Wanjiru Ndungu (Civil Application 161 of 2015) (Civ) [2016] KECA 211 (KLR)

Court of Appeal of Kenya
30 September 2016
PKP. Kihara KariukiFSF. SichaleSKS. ole Kantai
1,559 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive an eight-year-late appeal, confirming that full-court references cannot second-guess a single judge's discretion.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on a reference under Rule 54(1) of the Court of Appeal Rules, in which Muraya Wandungu challenged a decision of W. Karanja, JA declining to extend time to file and serve a notice of appeal and record of appeal out of time against a ruling of Osiemo, J of the High Court dated 27th June 2006 in H.C.C.C No. 137 of 2003, which had dismissed his suit as res judicata on the strength of a Nyandarua Land Disputes Tribunal award adopted as a judgment of the subordinate court. The full Court restated that a reference is not an appeal: it is confined to asking whether the single Judge misdirected himself on fact or law in the exercise of an unfettered discretion, and the full Court may not substitute its own discretion even if it would have decided differently. Applying the settled Rule 4 factors - length and period of delay, explanation, arguability of the appeal and prejudice to the respondent - the Court found the delay of about 8 years unexplained; the applicant's claim that several firms of advocates had acted for him was unsupported. It also held the intended appeal was not arguable because the applicant would first have to overcome the unvacated Tribunal award adopted as a judgment. The reference was dismissed with costs to the respondent.

Key legal issues

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01

Scope of a reference against a single Judge's Rule 4 decision

Holding

The full Court only investigates whether the single Judge misdirected himself on matters of fact or law; it does not substitute its own discretion.

Reasoning

The court relied on Attorney General v Korosso, Moru Farmers Co-operative Union Ltd v Abdul Aziz Suleman (No 2) and Purshottam Ramji Kotecha to establish that an appeal or reference will not interfere with the exercise of discretion unless the judge was wrong or acted on improper grounds, and that even if the full Court would have decided differently, that is irrelevant.

p. 2
02

Factors for extension of time under Rule 4

Holding

Length of delay, explanation for the delay, arguability of the intended appeal and prejudice to the respondent are the relevant considerations.

Reasoning

Citing Mwangi v Kenya Airways Ltd and Leo Sila Mutiso v Rose Hellen Mwangi, the court applied the settled Rule 4 test. It found the delay of about 8 years unexplained: the applicant's claim that several firms of advocates acted for him was unsupported by evidence of their role. Where the delay remains wholly unexplained, other factors need not be fully traversed.

p. 3
03

Arguability of the intended appeal

Holding

The intended appeal was not arguable because the applicant would first have to overcome the Tribunal award adopted as a judgment of the court, which had not been vacated.

Reasoning

The applicant's suit had been dismissed as res judicata on the basis of a Land Disputes Tribunal award adopted as a judgment. Despite judicial review proceedings and a review application all failing, the award remained in force, presenting a threshold hurdle to the intended appeal.

p. 3

Legal principles established

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  • On a reference under Rule 54(1), the full Court does not rehear the merits of the single Judge's Rule 4 decision but only asks whether the single Judge misdirected himself on fact or law in exercising his discretion.
  • The full Court is not entitled to substitute its own discretion for that of the single Judge under Rule 4.
  • Before granting an extension of time under Rule 4, a single Judge must consider the length and period of delay, the chances of success of the appeal, and the prejudice to the respondent.

Court orders

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  1. 1.The reference challenging the decision of the single Judge is dismissed
  2. 2.Costs of the reference awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 54(1)

Cases cited (6)

  • Attorney General –vs- James Alfred Korosso
    [2010] eKLR
  • Moru Farmers Co-operative Union Ltd. –vs- Abdul Aziz Suleman (No 2)
    [1966] EA 442
  • Purshottam Ramji Kotecha & Another –vs- Sanjay Narandas Pau & another
    [2005] eKLR
  • Mwangi –vs- Kenya Airways Ltd
    [2003] KLR 486
  • Leo Sila Mutiso –vs- Rose Hellen Mwangi
    Civil Application No. Nai. 255 of 1997
  • Joseph Muriithi Njiru –vs- Teresa Wanja Raymond
    [2008] eKLR
On appeal from
Single Judge, Court of Appeal
Ruling of W. Karanja, JA dated 29th April 2016 (in application dated 4th June 2015)
Jurisdiction invoked
Rules 4 and 54(1) 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, "Muraya Wandungu v Naomi Wanjiru Ndungu (Civil Application 161 of 2015)  (Civ) [2016] KECA 211 (KLR)", Case Analysis (2016). Civil Application No. Nai. 161 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/211/eng@2016-09-30

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