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Court of AppealDismissedCivil Application No. NAI 123 of 2020· [2020] KECA 330 (KLR)

Josephat Mulwa Mukima v Jesse Ng'ang'a Gakobo & 11 others [2020] KECA 330 (KLR)

Court of Appeal
2 October 2020
1,386 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant withdrew his defective notice and the trial court had already delivered final judgment.

What this practically means

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Executive summary

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This is a single-judge (in-chambers) ruling of the Court of Appeal at Nairobi by Warsame JA on an application dated 19th May 2020 under Rule 4 seeking extension of time to file and serve a notice of appeal, memorandum of appeal and record of appeal against a ruling of Angote J. of the Environment and Land Court at Machakos delivered on 1st November 2019, in which the applicant's bid to reopen his case to produce a allegedly lost title deed for parcel Donyo Sabuk/Komarock Block 1/373 was declined. The applicant explained that an initial notice of appeal filed on 4th November 2019 bore defects, was withdrawn on 27th April 2020 and replaced by a fresh notice on 29th April 2020, and that delay was occasioned by the trial file being retained in chambers. The 8th and 10th respondents opposed, contending the application was an abuse of process given that final judgment had been delivered on 24th April 2020 dismissing the applicant's suit. The court applied the principles in Leo Sila Mutiso and held that the withdrawn defective notice was of no consequence; that by the date of the fresh notice the trial court had delivered final judgment and become functus officio; and that the application, being overtaken by events and duplicated by a pending injunction application (Civil Application 118 of 2020), was an exercise in futility. The application was dismissed with costs abiding the outcome of the intended appeal. The applicant retains the opportunity to ventilate grievances in the intended appeal.

Key legal issues

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01

Extension of time to file notice and record of appeal

Holding

The application was dismissed; the delay was unexplained and the application was overtaken by events, as final judgment had been delivered in the trial court

Reasoning

Applying the settled principles in Leo Sila Mutiso, the court considered the length of and reason for delay, the chances of success and prejudice to respondents. The applicant filed his notice out of the 14-day window under Rule 75, withdrew it for defects, and by the time of the fresh notice the trial court had delivered final judgment dismissing his suit, becoming functus officio. The court held that granting extension would be futile since the applicant already had a pending application (Civil Application 118 of 2020) concerning the final decision, and could raise grievances in the second appeal.

p. 3
02

Effect of withdrawal of a defective notice of appeal

Holding

A withdrawn notice of appeal is of no consequence and cannot be relied upon

Reasoning

The applicant lodged a defective notice of appeal on 26th November 2019 and withdrew it on 27th April 2020, filing a fresh notice on 29th April 2020. The court held that withdrawal extinguished the notice entirely, so the fresh notice had to stand on its own and was out of time relative to the impugned ruling.

p. 2
03

Functus officio of the trial court after final judgment

Holding

A trial court that has delivered final judgment is functus officio and cannot reopen the case save for clerical or arithmetic errors

Reasoning

Following Telkom Kenya Limited v John Ochanda, the court held that by the time the applicant filed the fresh notice of appeal on 29th April 2020, final judgment dismissing his suit had already been delivered on 24th April 2020, rendering the trial court functus officio. This made the extension application, which targeted a ruling against a suit now dismissed, an academic exercise.

p. 2

Legal principles established

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  • Once a party opts to withdraw a defective notice of appeal, that notice is of no consequence and cannot ground a valid appeal
  • Once a court delivers final judgment it becomes functus officio and cannot reopen the matter save for clerical or arithmetic errors

Court orders

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  1. 1.Application dismissed
  2. 2.Costs shall abide by the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 4

Cases cited (2)

  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    (1999) 2 EA 231
  • Telkom Kenya Limited vs. John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited)
    [2014] eKLR
On appeal from
Environment and Land Court at Machakos
ELC No. 11 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Josephat Mulwa Mukima v Jesse Ng'ang'a Gakobo & 11 others [2020] KECA 330 (KLR)", Case Analysis (2020). Civil Application No. NAI 123 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/330/eng@2020-10-02

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