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Court of AppealPartially AllowedCivil Application (Leave) arising from Civil Appeal No. 144 of 1997

NGÁNGÁ KINUTHIA v JOHN KAMBO NGUGI [2007] KECA 240 (KLR)

Court of Appeal of Kenya
27 July 2007
WDW. S. Deverell
1,237 words in judgment
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The bottom line

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A Kenyan judge let a man pursue reviving his appeal seven years after it was dismissed — but the appeal itself is not yet revived.

What this practically means

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Executive summary

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This is a ruling by W. S. Deverell, JA, sitting as a single Judge of the Court of Appeal at Nairobi, 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 advocate had told him the appeal had been taken out of the hearing list by consent, and that he only learned of the dismissal in February 2005 when he found his advocate's office 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 over the leave application; whether the relief sought fell within rule 4; and whether a dismissed appeal, as distinct from one set aside, could be replaced by a fresh appeal. He concluded that the application was not an extension-of-time application but one for leave to apply for reinstatement. He expressed doubt that any leave was required at all, but granted leave in so far as it was. Counsel for the respondent indicated the respondent had died in 2005 and he had no instructions from the estate. No costs order was made. The ruling does not itself reinstate the appeal; it permits the applicant to pursue a reinstatement application.

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 to grant 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 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

Distinction between reinstatement of a dismissed appeal and extension of time under rule 4

Holding

The court held that the application was for leave to make a reinstatement application rather than an extension of time, but granted leave in so far as any leave was required, while expressing doubt whether leave was necessary at all.

Reasoning

The judge analysed rule 4, noting it extends time for doing acts authorised or required by the Rules. Reinstating a dismissed appeal is a different exercise from extending time. The court further noted uncertainty as to whether leave was needed at all, and granted leave only 'in so far as any leave ... is required, as to which I am not convinced'. The dismissal occurred in 1998; the application was lodged in 2005.

p. 3
02

Whether a single Judge has jurisdiction over the leave application

Holding

The single Judge entertained the application, framing it narrowly as a leave application rather than a determination of reinstatement itself.

Reasoning

The judge distinguished between deciding whether the dismissed appeal should be reinstated (not before him) and granting or declining leave to file such an application (before him). On that narrow footing he proceeded to determine the matter as a single Judge under rule 4.

p. 3

Legal principles established

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  • Rule 4 empowers the Court to extend time for the doing of any act authorised or required by the Rules, whether before or after the act
  • An application for leave to apply for reinstatement of a dismissed appeal is not, in itself, an application to extend time under rule 4

Court orders

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  1. 1.Leave granted to file an application for reinstatement of Civil Appeal No. 144 of 1997

The bench

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

WD
majority

Wrote the judgment

Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Relief refused

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Costs of the application

No costs order appears in the judgment; the applicant sought costs but the court made no order on costs

p. 1

Costs

No costs order made

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 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 orders - 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. 3Rule 4 distinction
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. 3Open question on dismissed appeals

Issues in the judgment

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minor

Costs sought in the Notice of Motion but no costs order made in the final orders

material

The application was lodged in April 2005 but the respondent's counsel's letter responding to the Hearing Notice is dated April 2007, and counsel stated no instructions had been received from the deceased's estate; the judgment records the respondent died in 2005 yet no substitution or abatement issue is addressed

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 v JOHN KAMBO NGUGI [2007] KECA 240 (KLR)", Case Analysis (2007). Civil Application (Leave) arising from Civil Appeal No. 144 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/240/eng@2007-07-27

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