Jimcab Services Limited v Bartholomew Bernard Osodo & Jacob Otieno (Suing as the Administrators of the Estate of Richard Omondi Odhiambo (Deceased) [2019] KECA 271 (KLR)
The bottom line
#Kenya's Court of Appeal gave Jimcab Services more time to file its appeal record after finding the single Judge overlooked key documents and a conceded fact.
What this practically means
#Executive summary
#Key legal issues
#Threshold for interference by the full Court with a single Judge's discretion on a reference
The full Court interferes where the single Judge acted on matters she should not have, failed to consider matters she ought to have, or was plainly wrong.
The Court restated the settled principle from Hezekiah Michoki and related authorities: a reference from a single Judge succeeds only where it is shown the Judge ignored relevant material, relied on irrelevant material, misapplied correct principles, or reached a plainly wrong conclusion. This is not an invitation to re-hear the application afresh, but a review of the exercise of judicial discretion.
Failure to consider material on record (the clerk's affidavit and leave form)
The single Judge erred by holding that the clerk was not named and did not depose to the facts, when the clerk's affidavit and leave application form were on record.
Paragraph 10 of the supporting affidavit of John Katiku named the clerk, Eliud Munyao Musao, and annexed Musao's own affidavit sworn on 24th May 2018 together with his leave application form. The Judge's criticism - that the clerk was unnamed and unsupported - was founded on material that had escaped her attention altogether, making her conclusion plainly wrong on the record before her.
Requiring verification of facts conceded by the opposing party
Where the respondents conceded that leave to file the notice of appeal out of time had been granted on 9th September 2016, it was unnecessary to require further verification of the conceded fact.
The second ground for refusing extension of time was non-production of the High Court order granting leave to file the notice of appeal out of time. The Court held that in light of the respondents' concession that leave had in fact been granted, requiring the applicant to produce documentary verification of what was admitted was an error that contributed to a wrong conclusion.
Legal principles established
#- For the full Court to interfere with the discretionary decision of a single Judge, the applicant must show that the single Judge took into account an irrelevant factor, failed to take account of a relevant one, failed to apply correct principles, or that the decision was plainly wrong.
Court orders
#- 1.The reference is allowed and the ruling of the single Judge given on 9th November 2018 is set aside
- 2.The applicant's application dated 24th May 2018 is allowed in terms of prayer 2 thereof (extension of time to file the record of appeal)
- 3.The applicant shall file and serve the record of appeal within 30 days from the date of delivery of the Ruling
- 4.The costs of the application and of the reference shall be in the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 413 of 2007 (single Judge reference: ruling of Nambuye, JA dated 9th November 2018)
- Jurisdiction invoked
- Rule 55(1)(b) of the Court of Appeal Rules (reference from a decision of a single Judge to the full Court); Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jimcab Services Limited v Bartholomew Bernard Osodo & Jacob Otieno (Suing as the Administrators of the Estate of Richard Omondi Odhiambo (Deceased) [2019] KECA 271 (KLR)", Case Analysis (2019). Civil Application No. 161 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/271/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.