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Court of AppealDismissedCivil Appli. 360 of 2004

Ododa & another v Yier & another (Civil Application 360 of 2004) [2007] KECA 32 (KLR)

Court of Appeal of Kenya
13 July 2007
PWP.N. WakiJOJ.W. Onyango OtienoWDW.S. Deverell
3,886 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to revive a long-stalled land dispute, confirming that unexplained delays and a party's own conduct can cost them their appeal.

What this practically means

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Executive summary

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This full Court ruling determines a reference against a decision of Bosire JA (14 June 2006) rejecting the applicants' application under rule 4 of the Court of Appeal Rules for extension of time to serve a notice of appeal and record of appeal on Sireret Farmers Co. Ltd, the purchaser at a 1998 public auction of land belonging to the applicants' deceased father's estate. The underlying litigation, begun in Kisumu High Court in 1978, concerned a consent judgment debt of Shs.2 million; an injunction application to stop the auction was dismissed in May 1998, the land was sold and transferred to Sireret, the applicants were evicted, and a prior appeal (Civil Appeal 289/98) was struck out in 2000 as defective. A second appeal (Civil Appeal 89/2002) was filed but Sireret was never served. The full Court restated the Fakir Mohammed principles governing interference with a single Judge's discretion and the settled rule 4 factors, which are non-exhaustive. It found the single Judge correctly appreciated and considered the explanation for delay - the mistaken belief that the firm of Olago Aluoch & Co. acted for Sireret - but reasonably found no explanation for the inaction after 24 March 2004 when the applicants knew of the failure to serve. The applicants' partaking of the auction proceeds and the observation that the appeal was overtaken by events were relevant, not irrelevant, factors, and no special circumstances warranting interference were established. The reference was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the single Judge erred in finding that there was no explanation for the delay in serving the notice of appeal and record of appeal on the 2nd respondent
  2. 2.Whether the single Judge took into account irrelevant factors, namely the applicants' conduct in collecting the auction proceeds and his view that the appeal was overtaken by events
  3. 3.Whether there were special circumstances warranting interference with the single Judge's discretion

Key legal issues

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01

Threshold for interfering with a single Judge's decision on reference

Holding

The full Court will not interfere unless the single Judge failed to consider a relevant matter, considered an irrelevant one, applied a wrong principle, misunderstood the evidence, or was plainly wrong.

Reasoning

The Court restated the Fakir Mohammed principles and examined whether any applied. It found the single Judge had considered the explanation for delay and found it wanting for the period after 24 March 2004 when the applicants knew Sireret should have been served. Differing views on the issue would amount to substituting the full Court's discretion for that of the single Judge.

p. 2
02

Relevance of a litigant's conduct in collecting proceeds of a disputed sale

Holding

The applicants' partaking of the auction proceeds while asserting the sale was illegal was a relevant factor in the extension-of-time discretion, not an irrelevance.

Reasoning

Because the rule 4 discretion is unfettered, there is no limit to the number of relevant factors. The applicants' conduct was raised by the parties themselves and the single Judge's observations on the consent judgment and forced sale were not wholly uncalled for. The Court declined to interfere on this ground.

p. 6
03

Whether the appeal being overtaken by events is an irrelevant consideration

Holding

It is a relevant factor for a single Judge to consider whether the intended appeal is meritorious or overtaken by events, provided he does not decide the question finally.

Reasoning

The intended appeal challenged the 1998 refusal of an injunction, but the property had been sold, the applicants evicted, and Sireret had taken possession. The single Judge's observation that orders in the appeal would most unlikely reverse those events did not overstate the merits and was a permissible factor.

p. 6

Legal principles established

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  • A reference to the full Court is not an appeal; the full Court will interfere with a single Judge's discretionary decision only on settled principles, e.g. where the single Judge took into account an irrelevant matter, failed to consider a relevant one, applied a wrong principle, or was plainly wrong.
  • In rule 4 extension-of-time applications the discretion is unfettered and the factors are non-exhaustive: length of and reason for delay, chances of the appeal, prejudice, effect on public administration, compliance with time limits, resources of parties, and public importance.
  • A single Judge considering an extension of time may take into account the merits of the intended appeal as one factor, but cannot pronounce himself with finality on them.

Court orders

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

The bench

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

PW
majority
JO
majority
WD
majority
On appeal from
Single Judge of the Court of Appeal of Kenya (Bosire JA)
Ruling of 14th June 2006 in Civil Application arising from HCCC No. 66 of 1978 (High Court, Kisumu)
Jurisdiction invoked
Reference to the full Court against the decision of a single Judge exercising the Court's discretion under rule 4 of the Court of Appeal Rules

Relief refused

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Extension of time to serve the notice of appeal and record of appeal on the 2nd respondent

No basis found to interfere with the single Judge's unfettered discretion; the delay from 24 March 2004 was unexplained and the factors relied on were not irrelevant

p. 6

Costs

The reference was dismissed with costs to the respondents.

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.

In sum, we find no sound basis for interfering with the unfettered discretion of the single Judge of this Court and we order that the reference be and is hereby dismissed with costs to the respondents.
p. 6Final orders - reference dismissed
a reference is not an appeal and the full court would only interfere with the exercise of the wide discretion conferred on a single Judge, who acts on behalf of the full court, on settled principles.
p. 2Nature of a reference
To enable this Court to interfere with the decision of a single Judge it is now well established that an applicant must be in a position to show that in considering the issues set out herein, the single Judge failed to take into account a relevant matter which he was obliged to take into account
p. 2Grounds for interference with single Judge's decision
As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant.
p. 2Rule 4 discretion unfettered
A single Judge may, as one of the possible factors, consider whether the intended appeal was meritorious. The only caution is that he cannot pronounce himself with finality at that stage as such finding is in the province of the full court.
p. 6Merits of intended appeal as a rule 4 factor

Issues in the judgment

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minor

The judgment's face sheet bears the station 'at Kisumu' but the delivery clause reads 'Dated and delivered at Nairobi', a minor internal inconsistency.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Ododa & another v Yier & another (Civil Application 360 of 2004) [2007] KECA 32 (KLR)", Case Analysis (2007). Civil Appli. 360 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/32/eng@2007-07-13

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