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Court of AppealDismissedCivil Application 151 of 2018· [2022] KECA 1431 (KLR)

Mwiti v Kenya Power and Lighting Company & another

Court of Appeal
14 October 2022
WKW Karanja
466 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed Mwiti's late-appeal application because he used the wrong procedure instead of requesting a reference within seven days.

What this practically means

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Executive summary

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This is a ruling by W Karanja, JA, sitting as a single judge of the Court of Appeal at Nyeri, dismissing Elphas Mwiti's application filed after the dismissal, on 7 August 2020, by J Mohamed, JA (also sitting as a single judge), of his motion for extension of time to appeal out of time against a High Court judgment (Ngaah Jairus, J) of 20 April 2016. The applicant sought leave to appeal out of time, a review of Judge Mohamed's ruling, and an order that the court 'construct' a three-judge bench to hear his application. The court held that under rule 55(1)(b) of the Court of Appeal Rules the applicant's only recourse after the single judge's dismissal was to request orally, or write to the registrar within seven days for, a reference before a full bench, which he failed to do. The application as filed was therefore incompetent: a single judge has no jurisdiction to review another single judge's decision, nor to constitute a bench. The application was dismissed with no order as to costs. The decision does not disturb the underlying High Court judgment or the single judge's ruling; it establishes that the reference procedure under rule 55(1)(b) is the exclusive route for challenging a single judge's decision on extension of time.

Key legal issues

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01

Competence of the application

Holding

The application was a non-starter because the correct recourse was a reference under rule 55(1)(b), which the applicant never sought.

Reasoning

After dismissal by a single judge, rule 55(1)(b) permits only an oral request for reference before a full bench or a written request to the registrar within 7 days. The applicant did neither, instead filing a fresh application, which the court held incompetent.

p. 1
02

Jurisdiction to review a single judge's decision

Holding

A single judge cannot review the decision of another single judge nor constitute a bench.

Reasoning

The court held it lacked jurisdiction to revisit Judge Mohamed's ruling or to 'construct' a three-judge bench; the reference mechanism is the exclusive route for such grievances.

p. 2

Legal principles established

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  • A party dissatisfied with a single judge's dismissal of an extension-of-time application must seek a reference under rule 55(1)(b), orally or by writing to the registrar within 7 days; a separate application is incompetent.
  • A single judge of the Court of Appeal has no jurisdiction to review another single judge's decision or to constitute a bench.

Court orders

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  1. 1.Application dismissed with no order as to costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 55(1)(b)
On appeal from
Court of Appeal at Nyeri (single judge)
Nyeri COA Civil Application No. 151 of 2018
Jurisdiction invoked
Rule 55(1)(b) of the Court of Appeal Rules (reference from a single judge's decision); no independent jurisdiction to review a single judge's decision

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, "Mwiti v Kenya Power and Lighting Company & another", Case Analysis (2022). Civil Application 151 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1431/eng@2022-10-14

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