Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 26 of 2016· [2018] KECA 111 (KLR)

Mohamed Shally Sese (shah Sese) v Fulson Company Ltd & 1 other

Court of Appeal of Kenya
6 December 2018
2,639 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that if you already filed a Notice of Appeal on time, you cannot ask for more time—you must simply file the appeal record.

What this practically means

#

Executive summary

#
This is a ruling of a full bench of the Court of Appeal at Malindi (Visram, Karanja and Koome JJ.A) on a reference under Rule 55 of the Court of Appeal Rules seeking to overturn a decision of Makhandia JA, sitting as a single Judge, who had on 30th September 2016 disallowed the applicant's application under Rule 4 for extension of time to file a Notice of Appeal. The intended appeal targeted a ruling of Emukule J, delivered 5th June 2015 in H.C.MISC.JR. Application No. 74 of 2013, judicial review proceedings concerning Plot LR No 17835. The respondents contended the applicant lacked locus standi, being a stranger to the proceedings, and that in any event a Notice of Appeal had already been filed within time on his behalf by his then advocates. The full bench agreed that even assuming the applicant was the same person as the interested party 'Shah Sese', the Notice of Appeal dated 12th June 2015 was lodged within time, so an extension application was unnecessary; the proper step was to file the record of appeal. Applying the Benson Mbuchu Gichuki test, the court found no irrelevant factor taken into account, no relevant factor ignored, and nothing plainly wrong in the single Judge's exercise of discretion. The reference was dismissed, with each party bearing its own costs as a land matter. The ruling affirms that references from single Judge decisions will not succeed absent demonstration of an error of principle or plain wrongness.

Key legal issues

#
01

Locus standi of the applicant

Holding

The court gave the applicant the benefit of the doubt on the name discrepancy but found that, even assuming he was the interested party before the High Court, the application was unnecessary because a Notice of Appeal was already on record filed within time on his behalf.

Reasoning

The court noted the interested party named in the judicial review proceedings was 'Shah Sese' while the applicant styled himself 'Mohamed Shally Sese (Shah Sese)'. The disparity was never explained. Even presuming identity of persons, a Notice of Appeal dated 12th June 2015 was filed within time by the applicant's advocates against the ruling of 5th June 2015. The applicant ought therefore to have proceeded to file the record of appeal rather than seek extension of time.

p. 3
02

Interference with a single Judge's discretionary decision on a reference under Rule 55

Holding

The full bench declined to interfere, finding no irrelevant factor considered, no relevant factor ignored, and nothing plainly wrong in the single Judge's conclusion that the applicant was an indolent litigant.

Reasoning

The court applied the test from Benson Mbuchu Gichuki that the single Judge exercises an unfettered discretion which must be exercised judicially. The single Judge had found the applicant failed to explain his delay and had already filed a Notice of Appeal. The applicant's own affidavit contradicted his case, and no error of principle or plain wrongness was demonstrated.

p. 3

Legal principles established

#
  • A full bench may interfere with a single Judge's exercise of discretion only where the single Judge took into account an irrelevant factor, failed to take into account a relevant factor, or the decision is plainly wrong.
  • Where a Notice of Appeal has already been filed within time, an application for extension of time to file a Notice of Appeal is unnecessary; the correct course is to proceed to file the record of appeal.
  • Locus standi is the right to bring an action or to be heard in a given forum.

Court orders

#
  1. 1.Dismissal of the reference made by the applicant vide the letter dated 3rd October 2016 and lodged in the Court on 5th October 2016
  2. 2.Each party to bear its own costs
On appeal from
High Court of Kenya at Mombasa
H.C.MISC.JR. Application No. 74 of 2013
Jurisdiction invoked
Rule 55 of the Court of Appeal Rules - reference to the full bench from a decision of a single Judge under Rule 4 (extension of time)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mohamed Shally Sese (shah Sese) v Fulson Company Ltd & 1 other", Case Analysis (2018). Civil Application No. 26 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/111/eng@2018-12-06

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