Mwanzo Shirandula v Marko Mukhweso [1987] KECA 26 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that judges deciding late appeals must consider all circumstances, like lost records and imprisonment, not just the delay's length.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court judge correctly refused the appellant's application for leave to appeal out of time under section 79G of the Civil Procedure Act
- 2.Whether the loss of the record of proceedings and the appellant's imprisonment in execution of the decree constituted good and sufficient cause for the delay in filing the appeal
Key legal issues
#Whether the judge exercised his discretion judicially in refusing extension of time
The judge misdirected himself and failed to direct himself on material matters - the loss of the record of proceedings and the appellant's two-month imprisonment - and therefore did not exercise his discretion judicially.
Section 79G requires an appeal within 30 days, excluding time certified for preparation of copies, but the proviso permits extension on good and sufficient cause. Here the record was lost, making certification difficult, and the appellant was jailed for two months in execution of the decree. The judge considered only the inordinate delay, ignoring these factors, and the objection to the affidavit's lack of dates was never raised in reply and could not be sustained where the record was unavailable.
Whether the affidavit's lack of dates justified refusal
The complaint that the supporting affidavit lacked all necessary dates could not stand, since the appellant could not supply details without the record, and the respondent did not raise the objection in his affidavit in reply.
The respondent argued the affidavit lacked dates, but the loss of the record meant the appellant could not provide them. Moreover, the point was not taken in the respondent's affidavit in reply, so it was unfair to found the refusal on it. The court held the delay may not have been the appellant's fault at all and the application should have been allowed on the whole matrix of circumstances.
Legal principles established
#- In an application for extension of time to appeal, a court must consider the circumstances beyond the date of judgment, including loss of the record and factors beyond the applicant's fault, rather than relying solely on the length of delay.
- Where a judge ignores material factors and fails to decide on the merits, the discretion has not been exercised judicially and the appellate court may interfere.
Court orders
#- 1.Appeal allowed
- 2.Appellant granted 30 days to file his appeal based on the skeleton record and such other documents as he can obtain
- 3.Appellant awarded costs of this appeal and of the application in the lower courts
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Appeal against the order of the High Court refusing leave to appeal out of time under section 79G of the Civil Procedure Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Two factors are of particular importance in this case. The record of the proceedings was lost. That meant that the lower court would find it difficult to make the certification. Secondly the appellant was put in jail for two months in execution of the decree. These matters were ignored by the High Court.
Because of the misdirection and no-directions, the judge did not exercise his direction judicially.
We allow the appellant 30 days to file his appeal based on the skeleton record and such other documents as he can obtain. The appellant will have the costs of this appeal and of the application in the lower courts.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwanzo Shirandula v Marko Mukhweso [1987] KECA 26 (KLR)", Case Analysis (1987). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/26/eng@1987-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.