Winston Makokha v Aggrey Wanjala Musima [2016] KECA 485 (KLR)
The bottom line
#The Court of Appeal refused to allow a second notice of appeal where one already existed on record, stressing prompt action and proper procedure.
What this practically means
#Executive summary
#Key legal issues
#Power to extend time under Rule 4 of the Court of Appeal Rules, 2010
The power is discretionary and guided by factors including length and reason of delay, arguability of the appeal, prejudice, public importance and the interests of justice.
The court confirmed that Rule 4, not Rules 41, 42 or 43, governs extension of time for filing a notice of appeal. Drawing on settled decisions including Leo Sila Mutiso and Fakir Mohamed, it restated the well-known principles and applied them: the applicant had not explained the delay of over one and a half months in presenting the application even after the date by which he should have discovered the need for leave.
Extension of time where a notice of appeal already exists on record
A single judge may not extend time to enable a second notice of appeal where a notice is already on record and has not been withdrawn or struck out; the applicant should instead seek validation of the existing notice.
Following Ocean Freight Shipping, Dolphin Palms, Pullin Harakchand Shah and Robert N. Kamau, the court held that allowing another notice would create two notices of appeal on one appeal. Validity of the existing notice is for the full Court, not a single judge, who likewise cannot deem a notice withdrawn under rule 82.
Unexplained delay as a ground for refusal
The applicant's failure to state when he instructed his advocate or discovered the defect, and the failure to file the application promptly, independently justified refusal.
Although the notice was filed within the 14-day period under Rules 75(2) and 77(1), the applicant, aware of the 60-day limit for the record of appeal, should have realised by 13th May 2011 that leave was needed. The application was not filed until 28th June 2011, leaving over one and a half months of unexplained delay.
Legal principles established
#- Where a notice of appeal is already on record and has neither been withdrawn nor struck out, a single judge should not extend time for filing a second notice of appeal; the proper course is to extend time so as to validate the existing notice.
- The validity or invalidity of a notice of appeal on record cannot be determined by a single judge; that is a matter for the full Court.
- Factors for extension of time under Rule 4 include length of delay, reasons for delay, chances of the appeal succeeding, prejudice to the respondent, and the interests of justice.
Court orders
#- 1.The applicant's application dated 20th June 2011 is dismissed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Bungoma
- HCCC No. 41 of 1996 (O.S)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2010 (extension of time jurisdiction of a single judge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Winston Makokha v Aggrey Wanjala Musima [2016] KECA 485 (KLR)", Case Analysis (2016). Civil Application No. 56 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/485/eng@2016-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.