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Court of AppealDismissedCivil Application No. 56 of 2015· [2016] KECA 485 (KLR)

Winston Makokha v Aggrey Wanjala Musima [2016] KECA 485 (KLR)

Court of Appeal of Kenya
14 June 2016
2,208 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Eldoret delivered in chambers by Gatembu JA on 14th June 2016 in an application by Winston Makokha for extension of time to file and serve a notice of appeal challenging the judgment of Muchemi J of the High Court at Bungoma dated 8th March 2011, which dismissed his adverse possession suit (HCCC No. 41 of 1996 (OS)) over land parcels E. Bukusu/N. Sang’alo/2866, 2867 and 2868. The applicant had filed and served a notice of appeal in person on 14th March 2011 within the prescribed 14 days, but later learned it had not been taken to the Deputy Registrar for endorsement. He argued he needed leave to file a valid notice. The respondent opposed, citing res judicata, lack of explanation for delay, and prejudice since the judgment had been executed. The judge confirmed that the power to extend time lies under Rule 4 and restated the settled factors: length and reason of delay, arguability of the appeal, prejudice, public importance and the interests of justice. Relying on Ocean Freight Shipping, Dolphin Palms, Pullin Harakchand Shah and Robert N. Kamau, the court held that since the existing notice of appeal had neither been withdrawn nor struck out, granting another would result in two notices of appeal on one appeal; validity of a notice is a matter for the full Court, not a single judge. Noting also over one and a half months of unexplained delay, the judge dismissed the application with no orders as to costs.

Key legal issues

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01

Power to extend time under Rule 4 of the Court of Appeal Rules, 2010

Holding

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.

Reasoning

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.

p. 2
02

Extension of time where a notice of appeal already exists on record

Holding

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.

Reasoning

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.

p. 3
03

Unexplained delay as a ground for refusal

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The applicant's application dated 20th June 2011 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 41
  • Court of Appeal Rules, 2010Rule 42
  • Court of Appeal Rules, 2010Rule 43
  • Court of Appeal Rules, 2010Rule 75(2)
  • Court of Appeal Rules, 2010Rule 77(1)
  • Court of Appeal Rules, 2010Rule 82
  • Court of Appeal Rules, 2010Rule 5(2)(b)

Cases cited (10)

  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997 (unreported)
  • P N N vs Z W N
    [2014] eKLR
  • Fakir Mohamed v Joseph Mugambi & 2 others
    [2005] eKLR
  • Mwangi vs Kenya Airways Ltd
    [2003] KLR 486
  • Major Joseph Mwereri Igweta vs Murika M’Ethare & Attorney General
    Civil Appl. NAI. 8/2000 (ur)
  • Murai v Wainaina (No 4)
    [1982] KLR 38
  • Ocean Freight Shipping Company Limited vs. Oakdale Commodities Limited
    Civil Application No. Nai. 198 of 1995
  • Dolphin Palms Limited vs. Al- Nasibh Trading Co. Ltd. and two others
    Civil Application No. 112 of 1999
  • Pullin Harakchand Shah vs Southern Credit Banking Corporation
    (2008) eKLR
  • Robert N. Kamau and another vs. Kirika Kamunga
    Civil Application No. 270 of 2014
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

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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, "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.