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Court of AppealAllowedCivil Application 47 of 2020· [2022] KECA 921 (KLR)

Kiprop & 4 others v Kipsang & another

Court of Appeal
24 June 2022
2,146 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 gave litigants a second chance to file a late appeal record because the first judge missed key evidence.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Mumbi Ngugi, Tuiyott and Kiage, JJA) allowing a reference under Rule 55(1)(b) of the Court of Appeal Rules against a ruling of Okwengu JA (dated 25 September 2020) which had dismissed the applicants' application under Rule 4 for extension of time to file a record of appeal. The intended appeal lay against a judgment of S. Githinji, J of the High Court at Eldoret in Petition No. 18 of 2016, concerning the Serve in Love (SILA) Trust. The applicants' notice of appeal was filed in time, but the record of appeal was not filed within the 60 days required by Rule 82(1). The single judge found an 85-day delay, no affidavit explaining the delay, and held that extension would further delay litigation over the Trust. The full bench, applying John Koyi Waluke and Muringa Company, found that the single judge had failed to consider a relevant matter: the advocate's affidavit had in fact been filed, and the true delay was 58 days, not 85. Although the affidavit's explanations (an unnamed clerk and the advocate's forgetfulness) were found implausible, the Court held the reference merited, allowed it, directed the applicants to file and serve the record of appeal within 30 days, and ordered each party to bear its own costs. The single judge's dismissal was thereby reversed.

Key legal issues

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01

Standard for full-bench review of a single judge's Rule 4 discretion

Holding

The full bench interferes where the single judge failed to take into account a relevant matter; here the judge did not see the advocate's affidavit supporting the application.

Reasoning

The Court restated the Waluke test for interfering with a single judge's discretion. It found the single judge based her decision on the belief that no affidavit explained the delay and on an 85-day delay figure. The record showed an affidavit had in fact been filed and the true delay was 58 days; these were relevant matters she did not consider.

p. 4
02

Whether the delay and its explanation justified extension of time

Holding

Although the affidavit's explanations were implausible and the 58-day delay long, the errors in the single judge's findings meant the reference was merited and extension was granted.

Reasoning

The Court assessed the advocate's affidavit blaming an unnamed clerk and his own forgetfulness, finding these reasons not plausible. However, the misapprehended delay period (85 vs 58 days) and the unseen affidavit meant the single judge might have reached a different conclusion, warranting interference and a fresh exercise of discretion in the applicants' favour.

p. 4

Legal principles established

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  • A single judge exercising discretion under Rule 4 does so on behalf of the whole Court, and the full bench interferes only where the judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence or law, or was plainly wrong.
  • Considerations for extension of time include length of and reasons for delay, prejudice, conduct of parties, balancing the right of appeal against timely resolution, public interest, and whether the intended appeal is prima facie meritorious.

Court orders

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  1. 1.The reference is allowed
  2. 2.The applicants shall file and serve their record of appeal within 30 days from the date of the ruling
  3. 3.Each party shall bear its own costs of the reference

Authorities

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Legislation

  • Court of Appeal RulesRule 55(1)(b)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82(1)

Cases cited (2)

  • John Koyi Waluke v Moses Masika Wetangula & 2 others
    [2010] eKLR

    Test for full bench interference with a single judge's Rule 4 discretion: irrelevant or ignored relevant matters, misapprehension, or plainly wrong decision.

  • Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees
    (2020) eKLR

    Non-exhaustive considerations for extension of time: delay, reasons, prejudice, conduct, balancing interests, public interest, and prima facie chances of success.

On appeal from
High Court of Kenya at Eldoret (via ruling of a single judge, H. Okwengu, JA)
Petition No. 18 of 2016
Jurisdiction invoked
Rule 55(1)(b) of the Court of Appeal Rules (reference from a decision of a single judge)

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, "Kiprop & 4 others v Kipsang & another", Case Analysis (2022). Civil Application 47 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/921/eng@2022-06-24

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