J.E. Kamau & another (Suing as officers of Tena Residents Associates) v Job [2016] KECA 310 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed judges can extend deadlines set by other judges, but refused to rescue litigants who sat on their case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge (Onyancha J) had jurisdiction to extend time fixed by an order of the court
- 2.Whether there was justification for extension of time as urged by the appellants
Key legal issues
#Whether Onyancha J had jurisdiction to extend time fixed by Maraga J's order
Yes. Order 50 Rule 6 does not confine the power to extend time to the judge who fixed the time; a judge of concurrent jurisdiction may enlarge it without sitting on appeal against the earlier order.
Under Section 2 of the Civil Procedure Act a court includes the High Court or a subordinate court exercising civil jurisdiction. A plain reading of Order 50 Rule 6 shows time set by court order may be enlarged by the court; while it would be clumsy for a subordinate court to vary a higher court's order, a High Court judge of concurrent jurisdiction may do so. Such a judge considers the application on current circumstances, including the earlier time set and reasons for non-compliance, and does not sit in appeal over a judge of concurrent jurisdiction. Onyancha J was therefore clothed with jurisdiction.
Whether there was justification for extension of time
No. The appellants neither prosecuted the suit within the 90 days nor sought extension before expiry or immediately thereafter; the suit stood dismissed and the judge properly declined to exercise discretion in their favour.
Order 50 Rule 6 permits application even after expiry of time, but the word 'may' makes the provision permissive, discretionary and dependent on the circumstances. Maraga J's orders required prosecution within 90 days expiring 9th June 2011. The appellants did not prosecute within that period nor seek extension before or immediately after expiry, so the suit stood dismissed as at 10th June 2011. Their indolence meant the judge could not be faulted for refusing to exercise his discretion in their favour.
Legal principles established
#- A judge of concurrent jurisdiction has power to enlarge time fixed by another judge's order; Order 50 Rule 6 does not restrict the power to extend time to the same judge who set the time.
- A judge hearing an application to extend time set by a previous judge is not sitting on appeal against that order, but considers the application on the circumstances then obtaining.
- Where time is set by an order of the High Court, that order ought to be enlarged by the High Court and not by a subordinate court.
- An appellate court will not interfere with the exercise of judicial discretion unless the judge misdirected himself materially or was clearly wrong and occasioned injustice.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- HCC Civil Appeal No. 54 of 2007
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court's Rules (Rule 29(1)), the appeal arising from the High Court's ruling in a second appeal from the Chief Magistrate's Court
Relief refused
#Extension of time to prosecute the suit (and reinstatement where time had lapsed)
Although Onyancha J had jurisdiction to extend time, the appellants failed to prosecute the suit within the 90 days ordered by Maraga J and did not seek extension before or immediately after expiry; the suit stood dismissed and the Judge properly declined to exercise discretion in their favour
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly we find no merit in this appeal and dismiss it with costs.
Order 50 Rule 6 of the Civil Procedure Rules does not restrict the power to extend time to the same Judge who set the time.
Jurisdiction is everything. Without it, a Court has no power to make one more step.
the use of the word “may” is a clear indicator that the provision is only permissive and therefore discretionary and dependent on the peculiar circumstances of the case.
Issues in the judgment
#The memorandum of appeal refers to a notice of motion dated 22nd September 2011, while the narrative earlier records the appellants' High Court application as filed on 12th October 2011; the two dates are not reconciled in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "J.E. Kamau & another (Suing as officers of Tena Residents Associates) v Job [2016] KECA 310 (KLR)", Case Analysis (2016). Civil Appeal No. 243 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/310/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.