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Court of AppealDismissedCivil Application No. NAI. 115 of 2015

Rhoda Ndululu Sengete & another v Tabitha Kavenge Matolo [2020] KECA 525 (KLR)

Court of Appeal
10 July 2020
1,807 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that blaming your lawyer for a late appeal won't work unless you prove you diligently followed up on your case.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, Kiage and Sichale, JJ.A.) dismissing a reference under Rule 55(1)(b) of the Court's Rules by Rhoda Ndululu Sengete and Daniel Kasimu Gibson against a decision of a single Judge (Koome, JA) who had refused them extension of time to file and serve a notice and record of appeal out of time. The intended appeal challenged a High Court judgment (Kariuki, J., 19th December 2014, ELC Cause No. 309 of 2005) directing that land parcel Makueni/Konza South Block 1 (Marwa) 46 be shared between the applicants' and respondent's families. The applicants attributed the delay to their former advocates. The single Judge found the delay of several months inordinate, the explanation unsupported by evidence of instructions to the former advocates, and the applicants lacking in due diligence, and found prejudice to the elderly respondent, who had obtained a confirmed grant of letters of administration over the suit property. On reference, the full Court reaffirmed that a reference is not an appeal and interference is warranted only where the single Judge considered irrelevant factors, ignored relevant ones, misapprehended law or fact, or reached a plainly wrong decision, with the onus on the applicant. It held the single Judge considered all the proper factors; that chances of success are a last, possible consideration and do not ipso facto entitle a party to extension; and that litigants must bear their chosen lawyers' mistakes absent demonstrated diligence. The reference was dismissed with costs to the respondent. This ruling binds subordinate courts and single Judges on the review of discretionary extension-of-time decisions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned single Judge erred in the exercise of her discretion under Rule 4 so as to warrant interference by the full Court on reference
  2. 2.Whether the single Judge failed to consider relevant factors or considered irrelevant factors in dismissing the application for extension of time
  3. 3.Whether the single Judge erred in failing to consider the chances of success of the intended appeal

Key legal issues

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01

Principles governing interference with a single Judge's discretion on reference

Holding

A reference is not an appeal; the Court interferes only where the single Judge considered irrelevant factors, failed to consider relevant factors, misapprehended a point of law or fact, or where the decision is plainly wrong, and the applicant bears the onus

Reasoning

The Court restated the classic grounds for disturbing discretionary decisions: taking into account irrelevant factors, failing to take relevant ones into account, misapprehension of law or fact, or a plainly wrong decision on the available evidence and law. It cited its own prior decisions (Itotia Ng'an'ga and Ramesh Shah) and applied them, holding the applicants had not discharged this burden.

p. 1
02

Relevant factors in an application for extension of time under Rule 4

Holding

The single Judge must consider the length of delay, reasons for delay, possibly the chances of success of the appeal, and prejudice to the respondent; delay of several months is inordinate and requires a cogent explanation

Reasoning

Relying on Leo Sila Mutiso and Mwangi v Kenya Airways, the Court confirmed the factors to be weighed, stressing that the discretion, though unfettered, must be exercised judiciously. It found the single Judge had considered precisely these factors, including the inordinate four-month delay, the absence of evidence of instructions to former advocates, and the prejudice to the elderly respondent.

p. 2
03

Weight to be given to chances of success of the intended appeal

Holding

Chances of success are a last, possible consideration, subordinate to the other requirements, and do not by themselves entitle a party to extension of time

Reasoning

The applicants argued the single Judge failed to consider the merits of the intended appeal. The Court held that even if she did, chances of success rank after the other requirements are satisfied, and a possibility of success does not ipso facto warrant extension. It found no basis for interference and emphasized prejudice to the aged respondent from further delay.

p. 3
04

Blame attributed to advocates for delay and litigant diligence

Holding

Where delay is blamed on advocates, the litigant must demonstrate due diligence, such as evidence of instructions and follow-up; otherwise litigants must bear their chosen lawyers' mistakes

Reasoning

The single Judge found no evidence that the applicants had instructed their former advocates, and no follow-up correspondence. The full Court endorsed this reasoning, noting the time has come for litigants to bear the mistakes of the lawyers they have chosen, absent demonstrated due diligence. This finding supported the conclusion that the delay was not excusable.

p. 2

Legal principles established

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  • A reference under Rule 55(1)(b) is not an appeal; the full Court will interfere with a single Judge's discretionary decision only on established principles of review of discretion, and the onus lies on the applicant
  • In an application under Rule 4 for extension of time, the single Judge must consider the length of and reasons for delay, possibly the chances of success of the appeal, and prejudice to the respondent; chances of success are a last, possible consideration and do not of themselves entitle a party to extension
  • The unfettered discretion to extend time must be exercised judiciously and upon reason, not arbitrarily or capriciously

Court orders

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  1. 1.The reference is dismissed with costs 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
High Court of Kenya at Nairobi
HC E.L.C. Cause No. 309 of 2005
Jurisdiction invoked
Rule 55(1)(b) of the Court of Appeal Rules (reference against a single Judge's decision under Rule 4)

Relief refused

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Variation, discharge or reversal of the single Judge's decision dismissing the application for extension of time to file and serve notice and record of appeal

The applicants failed to demonstrate that the single Judge exercised her discretion improperly or arrived at a plainly wrong decision

p. 3

Costs

The 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 is not an appeal rather an invitation to this Court to interfere with the exercise of the discretion bestowed on a single Judge under Rule 4 of this Court’s rules.
p. 1Nature of a reference under Rule 55(1)(b)
However, such unfettered discretion must be exercised judiciously and upon reason rather than arbitrarily, capriciously, on whim, or sentiment.
p. 2Judicious exercise of Rule 4 discretion
The possibility of the appeal succeeding does not ipso facto entitle a party to extension of time.
p. 3Chances of success as a subordinate consideration
I think it is time litigants started to bear the mistakes made by lawyers whom they have chosen.
p. 2Litigant responsibility for advocates' mistakes
We find no reason to interfere with the learned Judge’s decision. Accordingly, we dismiss this reference with costs to the respondent.
p. 3Disposition and costs

Issues in the judgment

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minor

The judgment states the High Court judgment was delivered on 19th December 2014, but the passage quoted from the single Judge's ruling refers to a judgment delivered on 19th December 2015

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, "Rhoda Ndululu Sengete & another v Tabitha Kavenge Matolo [2020] KECA 525 (KLR)", Case Analysis (2020). Civil Application No. NAI. 115 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/525/eng@2020-07-10

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