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Court of AppealDismissedCivil Application 31 of 2021· [2022] KECA 529 (KLR)

Osugo v Timeless Courier Services

Court of Appeal
27 May 2022
2,289 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a late appeal because the applicant couldn't explain the delay or prove he served the request for court proceedings on the other side.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Kiage, Ngugi and Tuiyott, JJA) dismissing a reference under Rule 55 of the Court of Appeal Rules brought by James Mogeni Osugo against the decision of a single Judge (A. Murgor, JA) who had refused his application under Rule 4 for extension of time to file an appeal out of time. The intended appeal was against the judgment of the High Court at Kisii (R.E. Ougo J) in Civil Appeal No. 2 of 2019, delivered on February 13, 2020, which reduced the applicant's liability from 100% to 50:50. The applicant argued that the delay was occasioned by the High Court Registry, evidenced by a Certificate of Delay, and that his appeal had high chances of success. The full Court restated the settled test: a single Judge exercises the Rule 4 discretion on behalf of the whole Court, and interference is warranted only where the single Judge took into account an irrelevant matter, failed to consider a relevant one, misapprehended the evidence or law, or was plainly wrong. Although the Court found that the letter bespeaking proceedings had in fact been annexed (correcting the single Judge on that point), it held there was no indication the letter was served on the respondent as Rule 82(2) requires, so the applicant could not exclude the proceedings-preparation period. The applicant also failed to explain a further delay of at least 55 days after the proceedings were ready. Finding no basis for interference, the Court affirmed the single Judge's decision and dismissed the reference with costs to the respondent.

Key legal issues

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01

Threshold for the full Court interfering with a single Judge's Rule 4 discretion

Holding

The full Court interferes only where the single Judge took into account an irrelevant matter, ignored a relevant one, misapprehended evidence or law, or was plainly wrong; a different preferred result is insufficient.

Reasoning

The Court adopted its earlier statement in John Koyi Waluke that a single judge exercises the Rule 4 discretion on behalf of the whole Court. Interference requires error of the identified kinds, not mere disagreement with the outcome. The applicant showed no such error here.

p. 3
02

Compliance with Rule 82(2) on bespeaking and serving proceedings

Holding

Although the letter bespeaking proceedings was annexed (contrary to the single Judge's finding), there was no indication it was served on the respondent, so the applicant could not exclude the proceedings-preparation period when computing delay.

Reasoning

Rule 82(2) requires a written request for proceedings served on the respondent before the proviso to Rule 82(1) applies. The respondent expressly denied service. The applicant therefore had to explain the entire one-year delay, which he did not.

p. 3
03

Unexplained further delay after proceedings were ready

Holding

The applicant's unexplained delay of at least 55 days after the proceedings were ready on January 20, 2021, until filing on March 15, 2021, was fatal to the application.

Reasoning

Relying on Trade Bank Ltd (in liquidation) v L.Z Engineering Construction Ltd, the Court held that discretion under Rule 4 can only be exercised upon reason, not sympathy, and the applicant placed no material explaining the further delay.

p. 4
04

Chances of success of the intended appeal

Holding

A single judge need not determine the merits of an intended appeal with finality; the consideration is only whether the appeal 'possibly' has chances of success.

Reasoning

The Court noted the complete judgment was in fact annexed, correcting the single Judge, but held that fully considering success is not the single judge's duty, citing Athuman Nusura Juma v Afwa Mohammed Ramadhani. This did not justify interference.

p. 4

Legal principles established

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  • A single Judge exercising the Rule 4 discretion does so on behalf of the whole Court, and the full Court will interfere only where the single Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence or law, or was plainly wrong.
  • Under Rule 82(2), an applicant cannot rely on the proviso to Rule 82(1) to exclude time taken to prepare proceedings unless the request for proceedings was in writing and served on the respondent.
  • Whether an intended appeal has merits is not determined with finality by a single judge on an extension-of-time application; the consideration is prefixed with 'possibly'.

Court orders

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  1. 1.The reference is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 55
  • Court of Appeal Rules, 2021Rule 4
  • Court of Appeal Rules, 2010Rule 82
  • Court of Appeal Rules, 2010Rule 82(2)

Cases cited (4)

  • John Koyi Waluke v Moses Masika Wetangula & 2 others
    Civil Appeal (Application) No. 307 of 2009, [2010] eKLR

    Circumstances in which the full Court may interfere with a single Judge's Rule 4 discretion.

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231

    Principles for extension of time: length of delay, reasons, possible chances of success, and prejudice to the respondent.

  • Trade Bank Ltd (in liquidation) v L.Z Engineering Construction Ltd & another
    Civil Application No. Nai 282/98

    Long delay requires explanation or material; discretion is exercised upon reason, not sympathy.

  • Athuman Nusura Juma v Afwa Mohammed Ramadhani
    [2016] eKLR

    Merits of an intended appeal are not determined with finality by a single judge; 'possibly' prefixes the chances-of-success consideration.

On appeal from
Court of Appeal (decision of single Judge, A. Murgor, JA)
Civil Application 31 of 2021 (ruling dated 18th June 2021)
Jurisdiction invoked
Rule 55 of the Court of Appeal Rules (reference to full Court from a single Judge's decision under Rule 4)

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, "Osugo v Timeless Courier Services", Case Analysis (2022). Civil Application 31 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/529/eng@2022-05-27

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