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Court of AppealDismissedCivil Appeal (Application) No. 238 of 2014

Ethics and Anti-Corruption Commission v George Joshua Okungu & 3 others [2020] KECA 721 (KLR)

Court of Appeal of Kenya
24 April 2020
1,695 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 confirmed that a reference cannot be used to re-argue a single Judge's extension-of-time decision; it only reviews for errors.

What this practically means

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Executive summary

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George Joshua Okungu, the applicant and first respondent, brought a reference under Rule 55(1)(b) of the Court of Appeal Rules against a ruling of Githinji, JA, delivered on 3rd June 2016, which had allowed the Ethics and Anti-Corruption Commission's application under Rule 4 to enlarge time to lodge an appeal and to deem the record of appeal, dated 22nd August 2014, as duly filed and served. The appeal whose time was enlarged was against the judgment of the High Court (Odunga and Korir, JJ.) of 7th February 2014 in Nairobi H.C. Petition Nos. 227 and 230 of 2009. Okungu and Mary Kiptui argued that the single Judge, despite knowing of a pending application to strike out the appeal, should have consolidated the two applications for hearing by a full bench, and that in proceeding alone he failed to exercise his discretion judiciously, ignored mandatory rules, and misapprehended the facts. The Commission countered that the reference was merely an attempt to appeal the single Judge's decision. The full Court (Makhandia, Kiage and Gatembu Kairu, JJA) restated the settled principles: on a reference the Court does not sit on appeal over a single Judge's ruling but only inquires whether he misdirected himself on fact or law, took into account irrelevant matters, or failed to consider relevant ones. The Court found the single Judge had correctly identified the Rule 4 factors, considered the non-compliant letter bespeaking proceedings, the satisfactory explanation for the 13-day delay, and the pending strike-out application. The consolidation complaint was baseless under Rule 53. The reference was dismissed with costs, leaving the extension of time and the deemed filing of the record intact.

Questions the Court framed

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

  1. 1.Whether the full Court may interfere with the decision of a single Judge allowing an application for extension of time
  2. 2.Whether the learned single Judge misdirected himself on matters of fact or law, or took into account irrelevant matters or failed to take into account relevant matters, in exercising his discretion under Rule 4
  3. 3.Whether the single Judge erred in hearing and determining the application for extension of time without consolidating it with the pending application to strike out the appeal

Key legal issues

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01

Scope of the full Court's review on a reference against a single Judge's Rule 4 decision

Holding

The full Court confines itself to investigating whether the single Judge misdirected himself on fact or law in exercising his wide discretion; it does not re-hear the application.

Reasoning

Relying on Macharia Njoroge v Gakure Kuria and the Mbogo v Shah and Sir Charles Newbold formulations, the Court restated the classic grounds for appellate interference with discretionary decisions: misdirection, acting on wrong matters, or failing to consider relevant matters, resulting in a wrong decision or misjustice. A reference is not an appeal.

p. 2
02

Whether the single Judge exercised his discretion judiciously

Holding

He did: he identified the correct factors (merits of the intended appeal, prejudice to respondents, inordinate delay) and applied them to the facts, including the non-compliant and subsequent compliant letter bespeaking proceedings.

Reasoning

The Court found the impugned ruling showed the Judge was alive to the Rule 4 factors, considered the non-compliance with Rule 82(1) regarding the letter requesting proceedings, evaluated the explanation for the 13-day delay as satisfactory, and had in mind the pending strike-out application. No irrelevant or omitted considerations were demonstrated.

p. 2
03

Whether failure to consolidate the extension-of-time application with the pending strike-out application vitiated the single Judge's decision

Holding

No; the complaint was baseless in light of Rule 53 of the Court's Rules, and the Judge was in any event aware of the pending strike-out application.

Reasoning

The applicant argued the Judge should have directed consolidation and joint hearing before a full bench. The Court accepted the appellant's submission that the objection was baseless in light of Rule 53, and found the Judge had expressly noted the pending strike-out application in his ruling, so no prejudice or misdirection arose.

p. 2

Legal principles established

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  • A full Court determining a reference against a single Judge's decision under Rule 4 does not sit on appeal over that decision; it may interfere only where the single Judge misdirected himself on fact or law, took into account irrelevant matters, or failed to consider relevant matters, and in consequence arrived at a wrong decision.
  • The full Court is not concerned with the merits of the decision of the single Judge on a reference.
  • A party cannot convert a reference into an appeal from the decision of a single Judge.

Court orders

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  1. 1.The reference is dismissed
  2. 2.Costs of the reference to the appellant

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Nairobi H.C. Petition Nos. 227 and 230 of 2009
Jurisdiction invoked
Rule 55(1)(b) of the Court of Appeal Rules (reference to the full Court against a decision of a single Judge under Rule 4)
Consolidated with
Civil Appeal (Application) No. 236 of 2014 (related, subject of a separate ruling of even date)

Relief refused

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Setting aside or varying the single Judge's ruling enlarging time to lodge the appeal and deeming the record of appeal duly filed and served

The full Court on a reference is not sitting on appeal against the single Judge's decision and found no misdirection on fact or law

p. 3

Costs

The reference is dismissed with costs to the appellant ("It is dismissed with 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.

In dealing with a reference therefore, the full Court is not, as stated by this Court in The Hon. Attorney General vs. James Alfred Korosso Civil Application No. NAI 114 of 2008, concerned with the merits of the decision by the single judge, as it is not sitting on appeal against the decision of a single judge.
p. 2Nature of a reference to the full Court
a Court of Appeal should not interfere with the exercise of the discretion of a single Judge unless it is satisfied that the Judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.
p. 2Restatement of Mbogo v Shah principle on interfering with discretion
What the applicant is in effect seeking is for the full Court to sit on appeal from the decision of the learned single Judge. That is not permissible.
p. 3A reference is not an appeal
The reference has no merit. It is dismissed with costs.
p. 3Disposition

Issues in the judgment

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minor

The judgment records that counsel relied on written submissions filed on 15th May 2017 (applicant) and 15th June 2017 (2nd respondent) yet the ruling was delivered on 24th April 2020, nearly three years later; no explanation for the interval appears in the text.

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, "Ethics and Anti-Corruption Commission v George Joshua Okungu & 3 others [2020] KECA 721 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 238 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/721/eng@2020-04-24

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