Stackelberg & another v Obst
The bottom line
#Kenya's Court of Appeal confirmed it will not rehear a single judge's refusal to extend appeal time—it only checks whether that judge acted properly.
What this practically means
#Executive summary
#Key legal issues
#Scope of a reference against a single judge's decision under Rule 55
The reference is properly before the Court if lodged within seven days; the Court reviews the exercise of discretion, not the application de novo.
Rule 55 permits a dissatisfied litigant to have a single judge's order varied, discharged or reversed. The Court held the reference was filed within seven days of the impugned ruling and framed its task as reviewing whether the discretion was properly exercised, not rehearing the extension-of-time application.
Whether the single judge properly exercised discretion in refusing extension of time
Yes. The judge applied the settled Sila Mutiso factors, found the delay of over one year inordinate and inexcusable, and correctly declined to exercise discretion in the applicants' favour.
The single judge considered the Salat and Sila Mutisi principles: length of delay, reasons, chances of appeal succeeding and prejudice. He found the blame on former advocates implausible, unfair to the respondent, and the appeal's success remote. The full Court found these were relevant factors and the discretion was judicially exercised.
Admissibility of new evidence on a reference
The explanation that the former advocate opened a new law firm, making an affidavit impossible, was new evidence introduced through submissions and not before the single judge; it could not be considered.
Rule 55(2) bars additional evidence at the hearing of an application previously decided by a single judge. The applicants' new explanation for the delay appeared for the first time in written submissions on the reference and was therefore impermissible.
Legal principles established
#- On a reference under Rule 55, the full Court's task is not to reconsider the application afresh but to determine whether the single judge properly exercised his discretion.
- No additional evidence may be adduced at the hearing by the Court of an application previously decided by a single judge; new material introduced only through submissions is inadmissible.
Court orders
#- 1.The reference is dismissed with costs to the Respondent
- On appeal from
- Single Judge of the Court of Appeal (Ouko JA)
- Civil Application 29 of 2016 (ruling of 25 November 2016)
- Jurisdiction invoked
- Rule 55 of the Court of Appeal Rules (reference against a decision of a single judge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stackelberg & another v Obst", Case Analysis (2022). Civil Application 29 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/845/eng@2022-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.