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Court of AppealStruck OutCivil Application No. SUP. 18 of 2018

Reuben Muna Kangethe v Athanas Bonaventure Wanyama & 2 others [2019] KECA 1009 (KLR)

Court of Appeal of Kenya
8 February 2019
1,669 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed only the Supreme Court can extend time for Supreme Court appeals, striking out a late land dispute application.

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 (Waki, Warsame and Murgor, JJA) on a Notice of Motion dated 24th July 2018 brought under Article 163(4)(b) of the Constitution seeking certification that an intended appeal to the Supreme Court, against the Court of Appeal's judgment of 3rd February 2017 (Visram, Azangalala and Kantai, JJA) in Civil Appeal No. Nai 241 of 2014, raised a matter of general public importance. The underlying dispute concerned Kiambu Municipality/Block 11-101: the respondents had successfully established before Ougo, J and on appeal that the register was fraudulently altered so that the property purportedly passed to Stanley Kimani Irungu and thence to the applicant, who claimed to be a bona fide purchaser. The applicant argued that conflicting interpretations of section 143 of the repealed Registered Land Act and section 80(2) of the Land Registration Act, including the later decision in Dennis Noel Mukholo Ochwanda v Elizabeth Murungari, made the intended appeal a matter of general public importance. The respondents objected that the Court of Appeal had no jurisdiction to entertain an application filed out of time, Rule 31 of the Supreme Court Rules reserving extensions to the Supreme Court. The Court framed two issues: whether it could extend time for filing a notice of appeal in the Supreme Court, and whether certification was warranted. Relying on Alfeen Mehdi Mohammed and Rule 53 of the Supreme Court Rules, 2016, it held that only the Supreme Court may enlarge time under those Rules; its own power under Rule 4 of the Court of Appeal Rules did not apply. The Motion, filed in July 2018 against a February 2017 judgment, was out of time. Lacking jurisdiction, the Court downed its tools per the Lillian S doctrine and struck out the application with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether time for filing a notice of appeal in the Supreme Court can be extended by the Court of Appeal
  2. 2.Whether the intended appeal raises a matter of general public importance stipulated by Article 163(4)(b) of the Constitution thereby requiring certification

Key legal issues

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01

Whether the Court of Appeal can extend time for filing a notice of appeal or application for certification in the Supreme Court

Holding

The Court of Appeal has no such jurisdiction; Rule 53 of the Supreme Court Rules, 2016 reserves the power to extend time under those Rules exclusively to the Supreme Court, and the Court of Appeal's power under Rule 4 of the Court of Appeal Rules extends only to time limited by its own Rules.

Reasoning

The Court distinguished between its jurisdiction to extend time limited by the Court of Appeal Rules (rule 4) and time limited by the Supreme Court Rules. It relied on Alfeen Mehdi Mohammed v Basil Feroz Mohammed, where a differently constituted bench doubted that it could extend Supreme Court time limits, and on the Supreme Court's own statement of its unfettered discretion in Salat. Because Rule 53 confers the enlargement power on the Supreme Court alone, the Court of Appeal's jurisdiction is excluded.

p. 2
02

Whether the Court could proceed to consider certification of a matter of general public importance where the application was filed out of time

Holding

No. Lacking jurisdiction to extend time, the Court could not entertain the question of certification, even if the intended appeal might otherwise raise a matter of general public importance.

Reasoning

The impugned judgment was delivered on 3rd February 2017 and the Motion was filed on 22nd/24th July 2018, well outside the fourteen-day period under Rule 31(1) of the Supreme Court Rules. Since the extension of that time was a matter reserved to the Supreme Court, the Court of Appeal, having no jurisdiction, was obliged to down its tools in line with the Lillian S doctrine and struck the application out.

p. 3

Legal principles established

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  • The Court of Appeal has no jurisdiction to extend the time limited by the Supreme Court Rules for filing a notice of appeal or an application for certification; only the Supreme Court may do so under Rule 53 of the Supreme Court Rules, 2016.
  • Where a court lacks jurisdiction, it must refrain from entertaining the matter, including the question of certification.

Court orders

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  1. 1.The application dated 24th July 2018 is struck out
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
On appeal from
Court of Appeal of Kenya, Nairobi
Civil Appeal No. Nai 241 of 2014
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya (application for certification to appeal to the Supreme Court)

Relief refused

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Certification that the intended appeal raises a matter of general public importance warranting an appeal to the Supreme Court

The Court lacked jurisdiction to consider certification because the application was filed out of time and only the Supreme Court can extend time under Rule 53 of the Supreme Court Rules

p. 3

Costs

No orders as to costs - each party to bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is instructive to note that the submission by the applicant's counsel attributing the delay in filing the notice of appeal to this Court was made from the bar.
p. 2Reliance on Alfeen Mehdi Mohammed on jurisdiction to extend Supreme Court time
Only the Supreme Court has jurisdiction to enlarge such time as set out in Rule 53 of the Supreme Court Rules.
p. 2Exclusive jurisdiction of the Supreme Court to extend time under its Rules
The Court may extend time limited by these Rules, or by any decision of the Court.
p. 2Rule 53, Supreme Court Rules 2016
Indeed, the impugned judgment of this Court was delivered on 3rd February 2017, and this Motion having been filed on 22nd July 2018 has rendered it as having been filed out of time.
p. 3Inordinate delay rendering the application out of time
Accordingly, our lack of jurisdiction requires that we down our tools, as adumbrated by The Lillian 'S' case Owners of Motor Vessels 'Lillian S' Vs. Caltex Oil (Kenya) Ltd [1989] KLR 1 which essentially means that we are unable to entertain the question of certification.
p. 3Lillian S doctrine - a court without jurisdiction cannot act
That said, the application is struck out with no orders as to costs. It is so ordered.
p. 3Final orders - striking out and costs

Issues in the judgment

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minor

The judgment states the Motion was 'filed on 22nd July 2018' in the analysis section while the opening paragraph describes it as 'This Notice of Motion dated 24th July 2018', a minor internal inconsistency in dates.

minor

The costs order 'with no orders as to costs' is rendered as 'each party to bear their own costs' in this brief's costsOrder field; the judgment itself only says 'with no orders as to costs' and does not use the phrase 'each party to bear their own costs'.

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, "Reuben Muna Kangethe v Athanas Bonaventure Wanyama & 2 others [2019] KECA 1009 (KLR)", Case Analysis (2019). Civil Application No. SUP. 18 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1009/eng@2019-02-08

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