Mohamed Shally Sese (Shah Sese) v Fulson Company Ltd & another [2018] KECA 111 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if you already filed a Notice of Appeal on time, you cannot ask for more time—you must simply file the appeal record.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant had locus standi to pursue the reference, given the discrepancy in names and the existing Notice of Appeal
- 2.Whether the full bench should interfere with the single Judge's discretionary refusal to extend time within which to file a Notice of Appeal
Key legal issues
#Locus standi of the applicant
The court gave the applicant the benefit of the doubt on the name discrepancy but found that, even assuming he was the interested party before the High Court, the application was unnecessary because a Notice of Appeal was already on record filed within time on his behalf.
The court noted the interested party named in the judicial review proceedings was 'Shah Sese' while the applicant styled himself 'Mohamed Shally Sese (Shah Sese)'. The disparity was never explained. Even presuming identity of persons, a Notice of Appeal dated 12th June 2015 was filed within time by the applicant's advocates against the ruling of 5th June 2015. The applicant ought therefore to have proceeded to file the record of appeal rather than seek extension of time.
Interference with a single Judge's discretionary decision on a reference under Rule 55
The full bench declined to interfere, finding no irrelevant factor considered, no relevant factor ignored, and nothing plainly wrong in the single Judge's conclusion that the applicant was an indolent litigant.
The court applied the test from Benson Mbuchu Gichuki that the single Judge exercises an unfettered discretion which must be exercised judicially. The single Judge had found the applicant failed to explain his delay and had already filed a Notice of Appeal. The applicant's own affidavit contradicted his case, and no error of principle or plain wrongness was demonstrated.
Legal principles established
#- A full bench may interfere with a single Judge's exercise of discretion only where the single Judge took into account an irrelevant factor, failed to take into account a relevant factor, or the decision is plainly wrong.
- Where a Notice of Appeal has already been filed within time, an application for extension of time to file a Notice of Appeal is unnecessary; the correct course is to proceed to file the record of appeal.
- Locus standi is the right to bring an action or to be heard in a given forum.
Court orders
#- 1.Dismissal of the reference made by the applicant vide the letter dated 3rd October 2016 and lodged in the Court on 5th October 2016
- 2.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.MISC.JR. Application No. 74 of 2013
- Jurisdiction invoked
- Rule 55 of the Court of Appeal Rules - reference to the full bench from a decision of a single Judge under Rule 4 (extension of time)
Relief refused
#Extension of time within which to file a Notice of Appeal / rehearing of the single Judge's ruling
A Notice of Appeal had already been filed within time on the applicant's behalf; no basis existed to disturb the single Judge's exercise of discretion
Costs
Each party to bear its own costs, this being a land matter
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
… the full court must consider that the single judge was exercising an unfettered discretion though he was enjoined to exercise it judicially.
It is trite that locus standi is what clothes a litigant with the authority to be heard before a court.
With tremendous respect, the applicant ought to have taken the matter from where the Notice of Appeal was filed and to proceed to take other steps required to file a record of appeal.
Accordingly we dismiss the reference made by the applicant vide the letter dated 3 rd October, 2016 and lodged in this Court on 5th October, 2016. We direct each party to bear its own costs this being a land matter.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Shally Sese (Shah Sese) v Fulson Company Ltd & another [2018] KECA 111 (KLR)", Case Analysis (2018). Civil Application No. 26 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/111/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.