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Court of AppealPartially AllowedCivil Appeal No. 144 of 1997 (Application)

NGÁNGÁ KINUTHIA vJOHN KAMBO NGUGI [2007] KECA 35 (KLR)

Court of Appeal of Kenya
27 July 2007
WDW. S. Deverell
1,238 words in judgment
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The bottom line

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A single Court of Appeal Judge can grant leave to apply to reinstate a dismissed appeal in Kenya, even after many years of delay.

What this practically means

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Executive summary

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This is a ruling by a single Judge of Appeal, Deverell JA, on a Notice of Motion dated 18th April 2005 by Ngángá Kinuthia, acting in person, seeking leave to file an application for reinstatement of Civil Appeal No. 144 of 1997, which had been dismissed on 30th November 1998 for non-appearance of the applicant or his counsel. The applicant explained that his then advocate, Martha Oiye, had told him the appeal had been taken out of the list by consent, that he only learned of the dismissal in February 2005, and that the advocate's office had been closed following Law Society of Kenya disciplinary action. The application was brought under rule 4 of the Court of Appeal Rules. The Judge framed three issues: whether a single Judge had jurisdiction to grant such leave; whether the relief fell within rule 4; and whether a dismissed appeal, as distinct from one set aside, could be replaced by a fresh appeal. He observed that the application was not truly one to extend time, and that the record lacked the underlying factual background. The respondent, John Kombo Ngugi, had died in 2005 and counsel took no further part. The Judge concluded that, while not convinced that any leave was even required, in so far as it was, leave was granted. No order was made on the applicant's prayer for costs. The matter thus proceeds to the full Court for determination of the reinstatement application itself.

Questions the Court framed

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

  1. 1.Whether a single Judge of Appeal has jurisdiction to hear and determine an application for leave to file an application to reinstate an appeal dismissed more than eight years earlier
  2. 2.Whether the relief sought falls within the ambit of rule 4 of the Court of Appeal Rules
  3. 3.Whether an appeal which has been dismissed, as opposed to set aside, can ever be replaced by a fresh appeal in respect of which an extension of time to file has been granted

Key legal issues

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01

Whether rule 4 of the Court of Appeal Rules covers leave to apply for reinstatement of a dismissed appeal

Holding

The court was not convinced that leave is even required, but in so far as it is, it granted leave under its discretion

Reasoning

The Judge observed that rule 4 empowers the Court to extend time for doing any act authorised or required by the Rules. He considered that the application before him was not an application to extend time but one for leave to make an application to reinstate a dismissed appeal, and queried whether an appeal dismissed, as distinct from set aside, can be replaced by a fresh appeal. Despite these doubts, and while expressly not convinced that leave was required, he concluded that leave should be granted so the applicant could move the full Court.

p. 3

Legal principles established

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  • An application for leave to file an application to reinstate a dismissed appeal is not, in substance, an application to extend time under rule 4 of the Court of Appeal Rules.
  • A single Judge of Appeal can determine an application for leave to file an application for reinstatement of a dismissed appeal under rule 4 of the Court of Appeal Rules.

Court orders

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  1. 1.Leave to file an application for reinstatement of Civil Appeal No. 144 of 1997 is granted, in so far as any such leave is required

The bench

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

WD
majority

Wrote the judgment

On appeal from
High Court
from which Civil Appeal No. 144 of 1997 arose (not stated)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Relief refused

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Costs of the application

No costs order was made; the court granted only the leave sought and made no order on the applicant's prayer for costs

p. 1

Costs

No costs order was made; the applicant's prayer that costs of the application be provided for was not expressly dealt with.

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 view of all of the above, I have come to the conclusion that, in so far as any leave to file an application for re-instatement of Civil Appeal No. 144 of 1997 is required, as to which I am not convinced, leave is hereby granted.
p. 3Final order - leave granted
The application before me is not in my view an application to extend time: it is an application for leave to make an application to re-instate an appeal which, for whatever reason, has been dismissed.
p. 3Characterisation of the application under rule 4
This then raises the issue whether an appeal which has been dismissed in contradistinction to being set aside can ever be replaced by a fresh appeal in respect of which an extension of time to file has been granted.
p. 3Distinction between dismissal and setting aside of an appeal

Issues in the judgment

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minor

The outcome is internally ambiguous: the Judge expressly doubted his own jurisdiction and whether leave was required, yet went on to grant leave 'in so far as any leave... is required'.

minor

The affidavit refers to the application both as one for reinstatement and as one for setting aside an ex-parte judgment, without the court resolving the discrepancy.

minor

The respondent died in 2005 and counsel took no further part, yet the application was determined without any substitute representation of the estate.

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, "NGÁNGÁ KINUTHIA vJOHN KAMBO NGUGI [2007] KECA 35 (KLR)", Case Analysis (2007). Civil Appeal No. 144 of 1997 (Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/35/eng@2007-07-27

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