Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application 157 of 2019· [2022] KECA 826 (KLR)

Shikhoba v Odera & 3 others

Court of Appeal
13 May 2022
1,086 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to revive a late land appeal, confirming that unexplained delays and waiting for typed proceedings won't excuse missing appeal deadlines.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Kisumu (Kiage, Ngugi and Tuiyott, JJA) on a reference under Rule 55(1)(b) of the Court of Appeal Rules, by which Thomas Shikamaya Shikhoba sought to overturn a single Judge's dismissal (Ouko, P, as he then was) of his Notice of Motion for extension of time to file and serve a notice of appeal and record of appeal out of time. The intended appeal lay from the judgment of Matheka, J of the Environment and Land Court at Kakamega delivered on 19th March 2019 in Kakamega ELC No. 129 of 2014. The applicant explained the delay by reference to the deterioration of his relationship with his former advocate, the withdrawal of two earlier extension applications filed by a new advocate who had not sought leave to come on record, and delay by the court in typing proceedings. The full Court restated the settled principles for interfering with a single Judge's discretionary decision - consideration of an irrelevant factor, failure to consider a relevant one, misapprehension of law or fact, or a plainly wrong decision - with the onus on the applicant, and the familiar rule 4 factors of length and reason of delay, chances of success and prejudice. It endorsed the single Judge's finding that the period from 16th September 2019 to 9th December 2019 was unexplained and that certified proceedings are not required before filing a notice of appeal under Rule 75. Finding no abuse of discretion or error of principle, the Court dismissed the reference with costs. The single Judge's decision was affirmed and no extension of time was granted.

Key legal issues

#
01

Circumstances warranting interference with a single Judge's discretionary decision on a rule 4 extension-of-time application

Holding

The full Court will not interfere absent demonstration of an irrelevant factor considered, a relevant factor ignored, misapprehension of law or fact, or a plainly wrong decision; the applicant bore and failed to discharge that onus.

Reasoning

The Court restated the Raballa principles governing references against single Judges' discretionary rulings and the Thuita Mwangi/Mutiso factors for rule 4 applications: length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent. It found the single Judge had properly weighed the unexplained gaps in the delay and that nothing suggested abuse of discretion or plain error of principle.

p. 3
02

Whether delay in availing typed proceedings by the court excuses delay in filing a notice of appeal

Holding

No. A notice of appeal under Rule 75 does not require certified proceedings, so the applicant's reliance on the certificate of delay was unavailing for the unexplained period.

Reasoning

The single Judge found the period between withdrawal of earlier applications on 16th September 2019 and the filing of the current motion on 9th December 2019 unexplained. The applicant blamed the ELC's delay in typing proceedings, but the full Court endorsed the finding that certified proceedings are not a prerequisite to filing a notice of appeal under Rule 75, so that explanation had no substance.

p. 2

Legal principles established

#
  • A full Court on a reference under Rule 55(1)(b) will only interfere with a single Judge's exercise of discretion under rule 4 where the applicant demonstrates an irrelevant or ignored relevant factor, misapprehension of law or fact, or a plainly wrong decision; the onus is on the applicant.
  • Certified proceedings are not necessary before a notice of appeal can be filed under Rule 75, so delay by the court in typing proceedings does not excuse failure to file a notice of appeal.

Court orders

#
  1. 1.The reference to the full Court is dismissed with costs

Authorities

#

Legislation

  • Court of Appeal RulesRule 55(1)(b)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75

Cases cited (4)

  • Donald O. Raballa -vs- Judicial Service Commission & Another
    [2018] eKLR

    Principles for interfering with a single Judge's exercise of discretion on a reference

  • Lingam Enterprises Limited & 4 Others -vs- Radio Africa Limited
    [2015] eKLR

    Supporting the Raballa principles on interference with discretionary decisions

  • Thuita Mwangi -vs- Kenya Airways Limited
    [2003] eKLR

    Guidelines a single Judge should consider on a rule 4 extension-of-time application

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 255 of 1997 (unreported)

    Factors for extension of time: length and reason for delay, chances of success, prejudice to respondent

On appeal from
Environment and Land Court at Kakamega
Kakamega ELC No. 129 of 2014
Jurisdiction invoked
Rule 55(1)(b) of the Court of Appeal Rules (reference to the full Court from a single Judge's decision under rule 4)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Shikhoba v Odera & 3 others", Case Analysis (2022). Civil Application 157 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/826/eng@2022-05-13

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