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Court of AppealDismissedCause No. 449 of 2017 (ELC Thika) - reference under rule 57(1) of the Court of Appeal Rules· [2023] KECA 666 (KLR)

Kimathi & another v Muriuki & 12 others (Civil Appeal (Application) 61 of 2020) [2023] KECA 666 (KLR)

Court of Appeal of Kenya
9 June 2023
DMD. K. MusingaKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
2,042 words in judgment
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The bottom line

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The Court of Appeal dismissed the applicants' bid to appeal out of time, ruling that Article 159(2)(d) of the Constitution does not excuse delay.

What this practically means

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Executive summary

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This is a reference under rule 57(1)(b) of the Court of Appeal Rules in which the applicants asked a full bench of the Court of Appeal at Nairobi to reverse the decision of Kiage, JA. of December 18, 2020, which had dismissed their application for leave to lodge an appeal out of time against the judgment of the Environment and Land Court at Thika (Ong'ondo, J.) of June 14, 2019, and to deem the Record of Appeal as filed. Counsel for the applicants argued that delay was occasioned by their former advocates and by the registry, that the appeal was arguable, that no prejudice would befall the respondents, and that article 159(2)(d) of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act required the court to disregard procedural technicalities. The respondents countered that the Notice of Appeal was served months late, the letter bespeaking proceedings was never served, and there was unexplained delay in collecting the proceedings. The full bench (Musinga, P.; Laibuta and Ngenye-Macharia, JJ.A.) reaffirmed that a reference is not an appeal and interference with a single judge's discretion requires an irrelevant factor, an ignored relevant factor, misapprehension of law or fact, or a plainly wrong decision. Tracing the chronology, the court found the explanation for delay implausible, noted a systematic pattern of delay, and observed that even the reference itself was lodged almost a month after the impugned ruling. It held that non-compliance with timelines is substantive rather than technical, and that article 159(2)(d) does not sanitize delay. The reference was dismissed with costs to the respondents, thereby affirming the single judge's ruling.

Key legal issues

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01

Conditions for interference with a single judge's discretionary decision on reference

Holding

The full bench will not disturb a single judge's discretion unless an irrelevant factor was considered, a relevant factor ignored, law or fact misapprehended, or the decision is plainly wrong. None was shown here; the judge properly considered the length of and reasons for the delay.

Reasoning

Rule 57(1)(b) permits a person dissatisfied with a single judge's decision in a civil matter to seek variation, discharge or reversal by the full court. The court emphasized that a reference is not an appeal and restated the classic grounds of interference. On the facts, the single judge took into account the length of the delay and the reasons for it, so his discretion was properly exercised and there was no basis for interference.

p. 5
02

Whether article 159(2)(d) and sections 3A and 3B override non-compliance with appellate timelines

Holding

No. Compliance with timelines is substantive, not technical, and article 159(2)(d) does not sanitize delay; the relevant rules are mandatory.

Reasoning

The applicants invoked article 159(2)(d) of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act, arguing the oxygen principles override procedural technicalities. The court held the overriding principle is not a panacea, must be invoked judiciously on a proper foundation, and that missing timelines strikes at the core of justice to all parties. Justice must balance the interests of both sides.

p. 4
03

Whether the delay was satisfactorily explained

Holding

No. The proceedings were ready on October 9, 2019 but collected on November 19, 2019, and the application was filed seven months after the proceedings were ready; the registry was not to blame and the period after collection was unexplained.

Reasoning

The court traced the chronology: judgment on June 14, 2019; Notice of Appeal June 20, 2019; service on the 2nd respondent two months later and on the 3rd and 4th respondents nearly four months later; proceedings ready October 9, 2019 but collected November 19, 2019; leave application filed May 2020. The conduct evidenced a systematic pattern of delay, and the reference itself was lodged almost a month late. Equity does not aid the indolent.

p. 4

Legal principles established

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  • A reference to a full bench is not an appeal; the bench may only interfere with a single judge's discretion on established principles - irrelevant factor considered, relevant factor ignored, misapprehension of law or fact, or plainly wrong decision.
  • Failure to observe statutory and rules-based timelines is not a mere procedural technicality which article 159(2)(d) can cure; the overriding objective does not sanitize delay.
  • The overriding principle may be invoked only in well deserving cases, upon a proper basis being laid, and must be exercised judiciously.

Court orders

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  1. 1.The Motion (reference) be and is hereby dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 57(1)(b)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 55
  • Appellate Jurisdiction ActSection 5 (proviso)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (8)

  • Donald Odhiambo Rabala v Judicial Service Commission & another
    [2020] eKLR
  • Abdirahman Abdi v. Safi Petroleum Products Ltd & 6 others
    [2011] eKLR
  • Cosmos Limited v Kenya Revenue Authority
    [2019] eKLR
  • Ngei v Kibe & another
    (Civil Appeal (Application) E359 of 2021) [2021] KECA 243 (KLR)
  • Daniel Nkirimpa Monirei v Sayialel Ole Koilel & 4 others
    [2016] eKLR
  • County Executive of Kisumu v. County Government of Kisumu & 8 others
    [2017] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2015] eKLR
  • KCB Bank Kenya Limited v Mwandoro
    (Civil Application E044 of 2021) [2023] KECA 260 (KLR)
On appeal from
Environment and Land Court at Thika
Cause No. 449 of 2017
Jurisdiction invoked
Rule 57(1)(b) of the Court of Appeal Rules (reference against a decision of a single judge, under the proviso to section 5 of the Appellate Jurisdiction Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kimathi & another v Muriuki & 12 others (Civil Appeal (Application) 61 of 2020) [2023] KECA 666 (KLR)", Case Analysis (2023). Cause No. 449 of 2017 (ELC Thika) - reference under rule 57(1) of the Court of Appeal Rules. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/666/eng@2023-06-09

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