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Court of AppealDismissedCivil Application E039 of 2023· [2023] KECA 1344 (KLR)

Obonyo v Koske & another (Civil Application E039 of 2023) [2023] KECA 1344 (KLR)

Court of Appeal of Kenya
10 November 2023
2,526 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend appeal filing time because the applicant's explanation for delay contradicted his own hospital records, and dismissed the stay request too.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru, delivered on 10th November, 2023 by F. Ochieng, JA, sitting as a single judge, on an application dated 8th May, 2023 seeking extension of time to file a notice of appeal and record of appeal out of time, and a stay of execution of an impugned judgment. The application arose from a mediation agreement relating to a property transaction and refund of part of the purchase price; the applicant contended the learned judge had misinterpreted the mediation agreement and imposed terms not agreed during mediation. The respondents opposed, contending the delay was inexcusable because the applicant was admitted to hospital on 30th March, 2023, after the 14-day notice period under Rule 75 had expired on 13th March, 2023, and that the discharge summary lacked an inpatient number. The court applied the established Rule 4 parameters from Leo Sila Mutiso v Hellen Wangari Mwangi, as expanded in Fakir Mohammed and Muringa Company Ltd, namely the length of delay, the reason for delay, the possible chances of the appeal succeeding, and the prejudice to the respondent. It found the delay of approximately two months and one week unexplained, noting the applicant had misstated his admission date despite a discharge summary recording Alzheimer's disease and confusion. It also noted the applicant had not requested typed proceedings or a certified judgment, and was already honouring the judgment by paying refunds, with only Kshs. 2,509,272/- outstanding. On the stay prayer, the court held that a single judge lacks jurisdiction, Rule 55 requiring a 3-Judge bench. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the delay of approximately 2 months and one week in filing the notice of appeal was satisfactorily explained

Holding

The delay was not satisfactorily explained. The applicant claimed admission to hospital on 3rd March, 2023, but the discharge summary showed admission on 30th March, 2023, and no explanation was given for the misstatement.

Reasoning

The applicant attributed the delay to illness following a stroke, but the discharge summary showed admission on 30th March, 2023, after the 14-day period under Rule 75 had expired on 13th March, 2023. The court found no explanation for misstating the admission date, and noted the applicant had not requested typed proceedings or a certified copy of the judgment, and was already honouring the judgment by making refund payments.

p. 5
02

Whether the intended appeal was arguable

Holding

The applicant did not demonstrate an arguable appeal; the court is not required to determine the merits definitively, the chances of success being prefixed by 'possibly'.

Reasoning

The applicant merely asserted that the appeal was arguable without requesting proceedings or a certified judgment. The court applied the principle that a single judge does not determine the merits with finality, but found the applicant had failed to demonstrate the Mutiso parameters, including arguability, particularly as he was already in the process of honouring the judgment through refund payments.

p. 5
03

Jurisdiction of a single judge to grant a stay of execution

Holding

A single judge has no jurisdiction to determine an application for stay of execution; Rule 55 requires such applications to be determined by the full Court (3-Judge bench).

Reasoning

Rule 55(2) of the Court of Appeal Rules excepts applications for leave to appeal, stay of execution, injunction, or stay of further proceedings, and applications to strike out, from the single-judge route. The court therefore declined to entertain the stay prayer, confining itself to the extension of time prayer.

p. 5

Legal principles established

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  • A single judge of the Court of Appeal has no jurisdiction to determine an application for stay of execution, which requires a 3-Judge bench under Rule 55
  • There is no minimum or maximum period of delay prescribed by law; any delay must be satisfactorily explained, and a plausible and satisfactory explanation is the key to the court's discretionary favour

Court orders

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  1. 1.Application dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 55
  • Matrimonial Property ActSection 12(1)

Cases cited (10)

  • Susan Akinyi v Mumifiora Limited t/a Baraka Roses Ngorika
    Civil Application No. 56 of 2020
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others
    [2015] eKLR
  • Abdul Azizi Ngoma v Mungai Mathayo
    [1976] KLR 61,62
  • Winston Makokha v Aggrey Wanjala Musima
    [2016] eKLR
  • Leo Sila Mutiso v Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Fakir Mohammed v Joseph Mugambi & 2 Others
    [2005] eKLR
  • Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees
    Civil Application No. 190 of 2019
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
  • Joseph D Halake v Yunis Malik
    [2008] eKLR
  • Athuman Nusura Juma v Afwa Mohamed Ramadhan
    CA No. 227 of 2015
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), before a single judge under Rule 55

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, "Obonyo v Koske & another (Civil Application E039 of 2023) [2023] KECA 1344 (KLR)", Case Analysis (2023). Civil Application E039 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1344/eng@2023-11-10

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