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Court of AppealDismissedCivil Application No. 195 of 2008

Eric Gor Sunguh v George Odinga Oraro [2010] KECA 117 (KLR)

Court of Appeal of Kenya
24 September 2010
1,318 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a reference is not a second chance: you must prove the single Judge was clearly wrong, not just that you disagree.

What this practically means

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Executive summary

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This was a reference to the full Court of Appeal under rule 54(1)(b) of the Court of Appeal Rules against a ruling of Githinji, J.A. delivered on 12th November 2008. The single Judge had dismissed the applicant's application under rule 55(4) for extension of time to lodge an application to re-hear (restore) a notice of motion dated 23rd January 2007 in which the respondent sought to strike out the applicant's notice of appeal from a High Court ruling (Osiemo, J) dated 31st July 2006 in H.C.C.C. No. 1250 of 2004. The applicant argued the single Judge ignored relevant matters, took into account irrelevant considerations, and that the respondent was not opposed to the application. The full Court reiterated that a reference is not an appeal: an applicant must show the single Judge misdirected himself or was clearly wrong in the exercise of discretion, resulting in injustice, citing Mbogo v Shah. The Court reaffirmed the settled factors for extension of time: length of delay, reason for delay, chances of success, and prejudice to the respondent. It found the single Judge had considered all these benchmarks, that the two-month delay was unexplained, counsel's failure to attend court was not explained by a diary extract, and the ruling sought to be appealed had not been availed. The Judge had also properly weighed prejudice, noting the interlocutory nature of the dispute. The reference was dismissed with costs to the respondent.

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 misdirected himself or was clearly wrong in the exercise of his discretion in dismissing the applicant's application under Rule 55(4) to extend time for lodging an application for restoration
  2. 2.Whether the single Judge failed to consider relevant matters or took into account irrelevant considerations in dismissing the application for extension of time

Key legal issues

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01

The threshold for interfering with a single Judge's discretionary decision on a reference

Holding

The applicant must demonstrate a misdirection or that the Judge was clearly wrong in the exercise of discretion resulting in injustice; otherwise the full Court will not disturb the decision.

Reasoning

Relying on Mbogo v Shah, the Court held that a reference is not an appeal. The single Judge's discretion may only be disturbed where he acted on wrong principles, took into account matters he should not have, or failed to consider matters he should have, arriving at a wrong conclusion or causing injustice. The Court found no such error here.

p. 2
02

The factors governing extension of time applications

Holding

The length of delay, the reason for delay, the chances of the appeal succeeding, and the prejudice to the respondent are the settled considerations; the applicant failed to furnish sufficient material on these.

Reasoning

The Court found the single Judge had considered all four benchmarks. The two-month delay was unexplained, counsel's failure to attend court was not explained by an extract of his diary, the ruling intended to be appealed was not availed, and the Judge properly considered prejudice, noting the interlocutory nature of the application and its impact on finality.

p. 2

Legal principles established

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  • A reference to the full Court under rule 54(1)(b) is not an appeal; the applicant must show the single Judge misdirected himself, arrived at a wrong decision, or was clearly wrong in the exercise of discretion resulting in injustice.
  • In deciding whether to grant an extension of time, the Court considers: (1) the length of the delay; (2) the reason for the delay; (3) possibly, the chances of the appeal succeeding; and (4) the degree of prejudice to the respondent.
  • An appellate court will not interfere with a single Judge's exercise of discretion on a reference unless it is shown the Judge misdirected himself or was clearly wrong resulting in injustice.

Court orders

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  1. 1.The reference against the ruling of the single Judge is dismissed
  2. 2.Costs of the reference awarded to the respondent

The bench

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

majority
majority
majority
On appeal from
Court of Appeal (single Judge, Githinji, J.A.)
Civil Application No. Nai 10 of 2007
Jurisdiction invoked
Rule 54(1)(b) of the Court of Appeal Rules (reference against decision of a single Judge)

Relief refused

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Reference seeking variation, discharge or reversal of the single Judge's order dismissing the application for extension of time

The single Judge considered all the relevant factors (length of delay, reason for delay, chances of success, prejudice) and his discretion was properly exercised; the applicant failed to provide sufficient material

p. 2

Costs

this reference is dismissed with costs to the respondent

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.

a reference does not constitute an appeal and therefore an applicant must demonstrate to the full Court that, the single Judge in exercising his discretion did misdirect himself in some matter and as a result, arrived at a wrong decision
p. 2Standard of review on a reference from a single Judge
the matters that this Court takes into account in deciding whether to grant an extension of time are; firstly, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted
p. 2Factors for extension of time
Accordingly, and for the reasons stated above, this reference is dismissed with costs to the respondent. It is so ordered.
p. 3Final orders and disposition

Issues in the judgment

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minor

The chronology within the judgment is internally inconsistent: the applicant's notice of motion is dated 23rd July, 2008, but a notice of motion dated 18th July, 2008 is said to be filed in Civil Application No. Nai 10 of 2007, and the ruling of the High Court is dated 31st July, 2006 while later referred to as 'made in August, 2006'.

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, "Eric Gor Sunguh v George Odinga Oraro [2010] KECA 117 (KLR)", Case Analysis (2010). Civil Application No. 195 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/117/eng@2010-09-24

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