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Court of AppealDismissedCivil Application No. 87 of 2019 (UR No. 62 of 2019)

William Njihia Kimani v Francis Waweru Mbochi [2020] KECA 422 (KLR)

Court of Appeal of Kenya
7 August 2020
1,952 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive an eight-year-delayed appeal, confirming that blaming a former advocate does not excuse long, unexplained inaction.

What this practically means

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Executive summary

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This is a unanimous ruling of a three-judge bench of the Court of Appeal at Nairobi (Warsame, Kiage and Ole Kantai, JJ.A) dismissing a reference under Rule 55(1)(b) of the Court of Appeal Rules, by which William Njihia Kimani sought to overturn the decision of Nambuye, JA (dated 8th November 2019) refusing extension of time to file and serve a Notice and Record of Appeal against a High Court Ruling of Okwengu, J. dated 23rd November 2010 in Nairobi HCCC No. 2761 of 1994 (now Nyahururu ELC Case No. 36 of 2018), which cancelled the applicant's title to suit property. The applicant attributed his failure to lodge a notice of appeal to ignorance of the ruling, allegedly caused by a falling-out with his advocate over fees, and said he only learnt of the ruling when served with eviction pleadings in 2018. The full Court restated the settled principles: a reference is not an appeal against the single Judge's decision; the applicant must show the Judge took into account irrelevant matters, failed to take into account relevant ones, misapprehended the law or facts, or that the decision was plainly wrong; it is not enough that the full Court would have decided differently. The Court found the single Judge had properly identified and interrogated all the Rule 4 factors (length and reason for delay, chances of success, prejudice), that the delay of over eight years was inordinate and unexplained, and that the property had passed to third parties. The reference was dismissed with costs to the respondent, affirming the single Judge's decision.

Questions the Court framed

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

  1. 1.Whether the single Judge, in dismissing the application for extension of time under Rule 4, exercised her discretion on wrong principles, took into account irrelevant factors, failed to take into account relevant factors, misapprehended the law or facts, or arrived at a plainly wrong decision, such as to justify interference by the full Court on reference

Key legal issues

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01

The threshold for interference by the full Court with a single Judge's Rule 4 discretion on a Rule 55 reference

Holding

The full Court will interfere only where the applicant demonstrates that the single Judge took into account an irrelevant factor, failed to take into account a relevant factor, misapprehended the law or facts, or that the decision is plainly wrong; the onus lies on the applicant.

Reasoning

The Court restated the principles from Donald O. Raballa and Eva Wangui Murua: a reference is not an appeal against the single Judge's ruling. The single Judge exercises the discretion on behalf of the full Court, and the full bench cannot simply substitute its own view of the merits. The applicant bears the onus of demonstrating a misdirection or that the decision is plainly wrong.

p. 2
02

Whether the single Judge properly applied the extension-of-time factors

Holding

Yes. The Judge expressly listed and interrogated the length of delay, reasons for delay, chances of the appeal succeeding, prejudice, and other relevant factors; she found the delay of 8 years, 6 months and 19 days unexplained and prejudice established.

Reasoning

The Court found the learned Judge was alive to and interrogated each relevant factor. Though she accepted the intended appeal was arguable, the delay was inordinate and unexplained, and the suit property had passed to third parties not before the Court, establishing uncontroverted prejudice. Her exercise of discretion therefore fell within lawful parameters.

p. 3
03

Whether the applicant's explanation - ignorance of the ruling due to his advocate's failure to notify him - excused the delay

Holding

No. On the evidence, the applicant failed to give a reasonable explanation for his inaction over more than eight years, and his right of appeal had to be exercised timeously in accordance with laid-down procedures.

Reasoning

The applicant asserted he only learnt of the 2010 ruling when served with eviction proceedings in 2018, blaming his former advocate. The single Judge found no reasonable explanation for the prolonged inaction and concluded that the constitutionally entrenched right of appeal must nonetheless be exercised in accordance with laid-down procedures, including being timeously initiated.

p. 3

Legal principles established

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  • A decision of a single Judge under Rule 4 on extension of time ought not to be lightly interfered with on reference; the applicant must show the Judge took into account an irrelevant factor, failed to take into account a relevant factor, misapprehended the law or facts, or that the decision is plainly wrong.
  • On a reference, the full Court is not sitting on appeal against the single Judge's decision and is not concerned with its merits, only whether the Judge misdirected himself on matters of fact or law.
  • In an extension of time application the court considers: the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • It is not enough on a reference to show that the full Court, sitting in place of the single Judge, would have reached a different result.

Court orders

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  1. 1.The reference under Rule 55(1)(b) is dismissed with costs to the respondent

The bench

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

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
majority
On appeal from
Single Judge of the Court of Appeal (Nambuye, JA), by reference under Rule 55(1)(b); underlying decision: High Court of Kenya at Nairobi (Okwengu, J.)
Ruling dated 8th November 2019 on an application under Rule 4, arising from Nairobi HCCC No. 2761 of 1994 (currently Nyahururu ELC Case No. 36 of 2018)
Jurisdiction invoked
Rule 55(1)(b) of the Court of Appeal Rules - reference from a decision of a single Judge exercising discretion under Rule 4 of the Court of Appeal Rules

Relief refused

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Extension of time to file and serve the Notice and Record of Appeal out of time (by setting aside or varying the single Judge's decision)

The applicant failed to demonstrate that the single Judge misdirected herself; the delay of over eight years was inordinate and unexplained, and the suit property had passed to third parties

p. 3

Costs

The reference is dismissed with costs to the respondent.

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.

The reference has no merit and it is dismissed with costs.
p. 3Final orders - disposition
the decision arrived by a single judge in exercise of such discretion under Rule 4 ought not to be easily dislodged unless the applicant demonstrably shows that discretion was exercised contrary to law
p. 2Threshold for interfering with a single Judge's Rule 4 discretion
It is not enough, for example, to show the full Court that had it been sitting in place of the single Judge, it would have arrived at a different result.
p. 2Reference is not an appeal against the single Judge's decision
first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted and, fourthly, the degree of prejudice to the respondent if the application is granted
p. 2Factors for extension of time under Rule 4
though the right of appeal is constitutionally entrenched, it has to be exercised in accordance with laid down procedures including being timeously initiated
p. 3Right of appeal and timeous initiation

Issues in the judgment

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minor

The judgment inconsistently refers to the single Judge's gender ('he/she') and contains a drafting slip in paragraph 12 referring to 'in granting the relief sought under Rule 4' where the single Judge disallowed the application

minor

The respondent's submissions cite 'Donald Raballa vs. Judicial Service Commission & Another (Supra)' before the judgment has itself first cited it, a minor drafting irregularity

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, "William Njihia Kimani v Francis Waweru Mbochi [2020] KECA 422 (KLR)", Case Analysis (2020). Civil Application No. 87 of 2019 (UR No. 62 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/422/eng@2020-08-07

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