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Court of AppealPartially AllowedCivil Appeal 6 of 1983 (application to full court from ruling of single judge)

Wasike v Swala (Civil Application 50 of 1983) [1984] KECA 55 (KLR)

Court of Appeal of Kenya
11 June 1984
AKA.A KnellerAHA.R.W HancoxJNJ.O Nyarangi
1,254 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled you don't need a near-certain win to revive a late appeal—just some merit, no unfair prejudice, and a delay that's not excessive.

What this practically means

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Executive summary

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The full Court of Appeal (Kneller, Hancox and Nyarangi, Ag JA) determined a reference from the decision of a single judge who, on January 20, 1984, had dismissed Cleophas Wasike's application under rule 4 of the Court of Appeal Rules (cap 9) for extension of time to serve the memorandum and record of appeal in Civil Appeal 6 of 1983 and for reinstatement of that appeal. The single judge had refused the application for two reasons: that delay attributable to the applicant advocate's sloth was not sufficient reason, and that the applicant had failed to show an overwhelming probability of success on the appeal. The full court disagreed with the second reason, holding that an applicant need not demonstrate an overwhelming probability of success; the correct criteria are merit in the intended appeal, absence of undue prejudice to the respondent, and delay that is not inordinate. The dispute concerned plot 81 in the Kabafewe Scheme, a land matter of considerable importance to both families, involving the pecuniary jurisdiction of the subordinate court, a reference to arbitration, and the Land Control Act. Following its recent decision in John Kuria v Kelen Wahito, the court held that where the subject matter is land and the respondent has had notice of the applicant's resolute intention to prosecute the appeal, the indulgence should be granted. The court reversed the single judge's ruling, allowed the application, reinstated the appeal, granted twenty-one days for service of the memorandum and record of appeal, and directed the applicant to pay the respondent's costs of the application in any event.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant had shown sufficient reason for the delay in serving the memorandum and record of appeal, attributable to his advocate's dilatoriness
  2. 2.What principles govern the exercise of the discretion to extend time to reinstate an appeal under rule 4
  3. 3.Whether the single judge was right to require the applicant to show an overwhelming probability of success
  4. 4.Whether, applying the correct principles, the appeal should be reinstated

Key legal issues

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01

The principles governing extension of time under rule 4 of the Court of Appeal Rules

Holding

The applicant must account satisfactorily for the delay, show merit in the intended appeal, and show the extension will not cause undue prejudice and the delay is not inordinate; an overwhelming probability of success need not be shown.

Reasoning

The single judge had applied the wrong threshold by requiring an overwhelming probability of success. The full court corrected this, holding that once the delay is satisfactorily accounted for, the applicant need only show some merit. The court articulated a descending scale of importance among the factors and noted that under the amended rule 4 the discretion is exercisable on such terms as the court thinks just.

p. 2
02

Whether an advocate's dilatoriness constitutes sufficient reason for delay

Holding

Blaming an advocate's sloth is not by itself sufficient reason, but where the respondent has had notice of the applicant's resolve to prosecute the appeal and the subject matter is land, the discretion may nevertheless be exercised in the applicant's favour.

Reasoning

The applicant attributed the failure to serve the memorandum of appeal to his own advocate. While fault of the respondent's advocate is irrelevant, the court found the respondent had all along known of the applicant's determination to institute the appeal, and, following John Kuria v Kelen Wahito in a land matter, exercised its discretion to grant the indulgence despite the imperfect explanation for delay.

p. 2

Legal principles established

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  • An applicant for extension of time to reinstate an appeal need not show an overwhelming probability of success; the correct test is that the appeal has some merit, the extension will not cause undue prejudice, and the delay is not inordinate
  • In land matters, where the respondent has sufficient notice that the applicant intends resolutely to prosecute his appeal, a single judge's refusal to extend time may be reversed even if the delay is not technically satisfactorily explained

Court orders

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  1. 1.The decision of the learned single judge dismissing the applicant's application is reversed
  2. 2.The application of Cleophas Wasike is allowed
  3. 3.Civil Appeal 6 of 1983 is reinstated
  4. 4.Cleophas Wasike is given twenty-one days from the date of the order to serve Mucha Swala with the memorandum of appeal and the record of appeal if they are in proper form
  5. 5.The appeal is to be set down for hearing on a date to suit the convenience of the court and the parties
  6. 6.Cleophas Wasike to pay Mucha Swala the costs of this application in any event

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AK
majority
AH
majority
JN
majority
On appeal from
High Court (decision of single judge of the Court of Appeal, Nairobi)
Ruling of January 20, 1984 in the application to reinstate Civil Appeal 6 of 1983; underlying appeal from Eldoret High Court Civil Appeal 2 of 1982 (judgment of November 19, 1982)
Jurisdiction invoked
Reference from the decision of a single judge of the Court of Appeal to the full court, under the Court of Appeal Rules (cap 9), rule 4

Relief refused

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Costs of the application

Although the applicant succeeded, the court considered it right that he pay the respondent's costs as an indulgence had been granted

p. 2

Costs

Cleophas Wasike (the appellant) to pay Mucha Swala (the respondent) the costs of this application in any event

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We do not, with great respect, agree that he had to show that his appeal had an overwhelming probability of success.
p. 2Correction of the single judge's test for extension of time
Today Cleophas Wasike must show that there is merit in his appeal, extending the time to institute it and/or serve it will not cause undue prejudice to Mucha Swala and, finally, the delay is not inordinate.
p. 2The correct criteria for extension of time
Therefore, we reverse the decision of the learned judge, allow the application of Cleophas Wasike, order that Civil Appeal 6 of 1983 be reinstated, and that he be given twenty one days from today to serve Mucha Swala with the same memorandum of appeal and the same record of appeal if they are in proper form
p. 2Final orders - disposition
it is, in our view, right that he should pay Mucha Swala for the costs of this application in any event.
p. 2Costs of the application

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Wasike v Swala (Civil Application 50 of 1983) [1984] KECA 55 (KLR)", Case Analysis (1984). Civil Appeal 6 of 1983 (application to full court from ruling of single judge). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/55/eng@1984-06-11

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