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Court of AppealDismissedCivil Application No. 1 of 2019· [2021] KECA 898 (KLR)

Ojilong Isuba & 5 others v Simon Mutoro Iraru (Deceased) Jean Omoyo Iraru & another [2021] KECA 898 (KLR)

Court of Appeal
19 March 2021
HOHannah OkwenguPKP. O. KiageFSF. Sichale
586 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 revive a case ignored for 21 years, confirming that unexplained delay kills appeals.

What this practically means

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Executive summary

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This was an application by six applicants in person before a full bench of the Court of Appeal at Kisumu under Rule 55(1)(b) of the Court of Appeal Rules, seeking review of a ruling delivered on 26th February 2019 by Otieno Odek, JA sitting as a single Judge under Rule 4. The single Judge had dismissed the applicants' motion for extension of time to file a Notice of Appeal and Record of Appeal out of time against two High Court judgments - one by Tanui, J (the heading records 3rd June 1996 while the body records 1998) and one by Chitembwe, J delivered by Lenaola, J on 15th April 2010 at Kakamega High Court. The full bench held that the single Judge had exercised an unfettered discretion, had correctly applied the principles in Nicholas Kiptoo Arap Korir v IEBC, and had found the delay of over 21 years inordinate and unexplained. The applicants' reasons - poor legal advice from their former advocates and lack of funds - were held to be completely unsatisfactory. The Court characterised the attempt to revive a matter determined 21 years earlier as a second bite of the cherry amounting to abuse of the court process, inconsistent with the object of section 3A & B of the Appellate Jurisdiction Act and the Court of Appeal Rules to facilitate just and expeditious disposal of appeals and efficient use of judicial time. The full bench found no basis to interfere with the properly exercised discretion and dismissed the application with costs. The decision affirms the single Judge's ruling and leaves the High Court judgments undisturbed.

Key legal issues

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01

Whether the full bench could interfere with the single Judge's Rule 4 discretion

Holding

The single Judge's discretion was properly exercised; there is no basis for interference by the full bench.

Reasoning

The applicants, in person, gave no reason why the Court should interfere with the single Judge's ruling. The Judge had unfettered discretion under Rule 4 to grant or reject the extension, and he guided himself by the correct principles in Nicholas Kiptoo Arap Korir v IEBC. He found the delay of over 21 years inordinate and unexplained, and the full bench found the reasons offered (poor legal advice and lack of funds) completely unsatisfactory. A discretionary decision properly arrived at cannot be disturbed.

p. 2
02

Whether the delay of over 21 years was adequately explained

Holding

The delay was inordinate and the reasons given - poor legal advice and lack of funds - were completely unsatisfactory.

Reasoning

The applicants attributed the delay to not receiving good legal advice from their former advocates and to lack of funds to pursue the appeal. The Court held these reasons insufficient to explain a delay exceeding 21 years since the first High Court judgment. Reviving a matter determined 21 years earlier was characterised as an attempt at a second bite of the cherry, amounting to abuse of process, inconsistent with the objective of the Appellate Jurisdiction Act and the Court of Appeal Rules to facilitate the just and expeditious disposal of appeals.

p. 1

Legal principles established

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  • An appellate court will not interfere with a single Judge's exercise of unfettered discretion under Rule 4 unless it is shown that the discretion was not properly exercised.
  • Unexplained inordinate delay in filing an appeal out of time constitutes an abuse of the court process that the Court will not permit.

Court orders

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  1. 1.The application seeking to set aside/dismiss the single Judge's ruling is dismissed with costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3A & B
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 55(1)(b)

Cases cited (1)

  • Nicholas Kiptoo Arap Korir -vs IEBC
    Civil Application No. 16 of 2014
On appeal from
High Court (ruling under review by full bench: single Judge, Hon. Otieno Odek, JA)
Civil Application No. 1 of 2019 (Rule 4 ruling of 26th February, 2019)
Jurisdiction invoked
Rule 55(1)(b) of the Court of Appeal Rules (reference from the decision of a single Judge under Rule 4); section 3A & B of the Appellate Jurisdiction Act

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, "Ojilong Isuba & 5 others v Simon Mutoro Iraru (Deceased) Jean Omoyo Iraru & another [2021] KECA 898 (KLR)", Case Analysis (2021). Civil Application No. 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/898/eng@2021-03-19

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