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Court of AppealDismissedCivil Application No. NAI 95 of 2010 (UR 70/2010)

Said Juma Chitembwe v Edward Muriu Kamau & 4 others [2011] KECA 392 (KLR)

Court of Appeal of Kenya
28 January 2011
EOE. O. O'KubasuJOJ. W. Onyango OtienoJNJ. G. Nyamu
2,582 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that anyone directly affected by court orders has a right to join the case and be heard, even after delays.

What this practically means

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Executive summary

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This was a Reference to a full bench of the Court of Appeal from a ruling of a single Judge (Githinji, J.A.) dated 5 October 2010, who had allowed Justice Said Juma Chitembwe to be joined as a party in Civil Application No. NAI 95 of 2010. That application, brought by Stephen Kipkenda Kiplagat, sought a stay of criminal proceedings in Anti-Corruption Criminal Case No. 36 of 2009, in which Chitembwe, Kiplagat, Kamau and Lumbasyo faced conspiracy and corruption-related charges. Chitembwe, who had not been a party to the stay proceedings, sought joinder so that he could apply for the vacation or variation of the stay orders, which directly affected his trial. The Attorney General and the Kenya Anti-Corruption Commission argued that the single Judge erred, citing inordinate delay and abuse of process, and noting that the application came after the promulgation of the new Constitution providing for the vetting of judges. The full Court (O'Kubasu, Onyango Otieno and Nyamu, JJ.A.) restated the settled principles governing interference with a single Judge's discretionary decisions: interference lies only where the single Judge considered irrelevant matters, ignored relevant ones, misapprehended the evidence and law, or was plainly wrong - it is not enough that the full bench would have decided differently. The Court also emphasised that since July 2009, Section 3A of the Appellate Jurisdiction Act requires the Court to give effect to the overriding objective. Finding that the single Judge had exercised his discretion judicially and that justice required that a person directly affected by orders be allowed to challenge them, the Court dismissed the reference with costs to the respondents, thereby affirming the joinder of Chitembwe as sixth 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 full Court should interfere with the ruling of the single Judge allowing Chitembwe to be joined as a party to Civil Application No. NAI 95 of 2010
  2. 2.Whether the single Judge erred by failing to consider relevant matters, including inordinate delay and the alleged abuse of court process

Key legal issues

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01

Scope of the full Court's power to interfere with a single Judge's discretionary decision on a reference

Holding

The full Court will not interfere unless it is shown the single Judge acted on irrelevant matters, ignored relevant matters, misapprehended the evidence or law, or was plainly wrong.

Reasoning

The Court relied on its prior decisions, including John Koyi Waluke and Mbogo v Shah, reiterating that a single Judge exercises an unfettered discretion on behalf of the whole Court. The reference court applied the same principles to a reference from a joinder ruling, holding the single Judge had exercised his discretion judicially and applied the correct principles.

p. 5
02

Whether delay and the change of Constitution disentitled the applicant from joinder

Holding

No; the delay was not such as to disentitle the applicant, who was directly affected by the stay orders, from being heard, and justice demanded he be allowed to challenge the orders.

Reasoning

The single Judge had found the alleged delay insufficient to bar the procedural application, noting that the two stay applicants did not oppose the joinder and that the applicant sought only locus to be heard on vacation of the stay. The full Court agreed that, applying the overriding objective, justice required that a person directly affected by orders be permitted to challenge them.

p. 5

Legal principles established

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  • A full Court on reference may interfere with a single Judge's exercise of discretion only where the single Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence and law, or was plainly wrong; it is not enough that the full Court would have reached a different result.
  • Since the enactment of Section 3A of the Appellate Jurisdiction Act, the Court must, in interpreting or exercising any power under any rule or provision of the Act, give effect to the overriding objective.

Court orders

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  1. 1.The reference to the full Court is dismissed
  2. 2.Costs of the reference awarded to the respondents

The bench

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

EO
majority
JO
majority
JN
majority
On appeal from
Single Judge of the Court of Appeal (Githinji, J.A.)
Civil Application No. NAI 95 of 2010 (UR 70/2010)
Jurisdiction invoked
Reference to full Court from a decision of a single Judge under the Court of Appeal's rules made under the Appellate Jurisdiction Act

Relief refused

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Interference with the single Judge's ruling joining the applicant as a party

The single Judge exercised his discretion judicially and applied the correct principles

p. 5

Costs

The reference is 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 the result the reference is dismissed with costs to the respondents.
p. 5Final orders - dismissal of reference
It is not enough, for example, to show the full Court that had it been sitting in place of the single Judge, it would have arrived at a different result.
p. 4Standard for interfering with a single Judge's discretion
we are satisfied that the learned single Judge exercised his discretion judicially.
p. 5Affirmation of single Judge's ruling
The applicant is seeking to challenge the orders which affected him directly and justice demands that he be allowed to do so.
p. 5Right of an affected party to be heard

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Said Juma Chitembwe v Edward Muriu Kamau & 4 others [2011] KECA 392 (KLR)", Case Analysis (2011). Civil Application No. NAI 95 of 2010 (UR 70/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/392/eng@2011-01-28

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