Mlegwa & another (Suing as the legal representatives of the Estate of Samuel Mbogho Mshila) v Duwe (Civil Application E017 of 2024) [2025] KECA 1871 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a family to appeal a Voi land case out of time, ruling the short delay and strong legal grounds justified a second chance.
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 full bench should interfere with the single Judge's exercise of discretion in dismissing the application for extension of time to file a notice of appeal
- 2.Whether the applicants demonstrated that the single Judge took into account an irrelevant matter, failed to take into account a relevant matter, applied a wrong principle, or reached a plainly wrong decision
Key legal issues
#Test for interference by a full bench with a single Judge's decision on a reference
The full bench interferes only where the single Judge failed to consider a relevant matter, considered an irrelevant matter, applied a wrong principle, misapprehended the evidence, or where the decision is plainly wrong.
The court restated the settled principles from John Koyi Waluke v Moses Masika Wetangula, confirming that a single Judge exercises the court's discretion on its behalf. Mere disagreement with the outcome does not justify interference; the applicant must identify a legal or evidential misdirection or show the decision was plainly wrong on all the surrounding circumstances.
Whether the single Judge misdirected herself in dismissing the extension-of-time application
Yes. The single Judge failed to weigh the short 10-day delay and overlooked the applicant's sworn affidavit attesting to the difficulties in convening the family and mobilising fees, and wrongly found the draft memorandum raised no issues of law.
The court noted the delay was only 10 days outside the 14-day period and not inordinate; the 1st applicant had sworn an affidavit on 16th February 2024 attesting to the family difficulties; the prejudice alleged by the applicants was eviction from ancestral land; and most of the sixteen grounds challenged the first appellate court's findings for being unsupported by the applicable law, which is a question of law.
Legal principles established
#- A full bench of the Court of Appeal 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 or law, or the decision is plainly wrong; it is not enough that the full bench would have reached a different result.
- In exercising discretion under rule 4 of the Court of Appeal Rules, a single Judge acts on behalf of the whole court, and the grounds for interference by a full bench are correspondingly narrow.
Court orders
#- 1.The application dated 16th February 2024 is allowed and the applicants are granted leave to file a notice of appeal out of time against the judgment delivered on 23rd January 2024 in Voi ELC LA No. 21 of 2023
- 2.The applicants to file and serve the notice of appeal within fourteen (14) days of the date of the ruling
- 3.No order as to the costs of the application dated 16th February 2024 or of the reference dated 27th September 2024
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya (decision of a single Judge, Murgor, JA)
- Application dated 16th February 2024 in intended appeal from Voi ELC LA No. 21 of 2023
- Jurisdiction invoked
- Rule 57(1)(b) of the Court of Appeal Rules, 2022 (reference from the decision of a single Judge to a full bench)
Relief refused
#Costs of the application and of the reference
The court declined to make any costs order despite allowing the reference
Costs
No order as to costs - each party to bear their own costs of the application dated 16th February 2024 and the reference dated 27th September 2024
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.
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 difierent result.
We accordingly allow the applicants' application dated 16th February 2024 and grant the applicants leave to file a notice of appeal out of time against the judgment delivered on 23rd January 2024 by the Environment and Land Court at Voi (N Matheka J) in Voi ELC LA No. 21 of 2023.
Lastly, we make no order as regards the costs of the application dated 16th February 2024, or of the reference dated 27th September 2024.
most of which challenged the findings of the first appellate court for not being supported by the applicable laws, which is an issue of law.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mlegwa & another (Suing as the legal representatives of the Estate of Samuel Mbogho Mshila) v Duwe (Civil Application E017 of 2024) [2025] KECA 1871 (KLR)", Case Analysis (2025). Reference dated 27th September 2024 arising from Voi ELC LA No. 21 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1871/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.