St John of God Hospital Tigania v Michubu (Legal Representative of the Estate of Agnes Kawira) (Civil Application E052 of 2024) [2026] KECA 744 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late medical negligence appeal to proceed because the single judge ignored key evidence and relied on a reversed decision.
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 Court should interfere with the single judge's exercise of discretion in dismissing the application for extension of time to file the appeal
- 2.Whether the single judge took into account irrelevant matters, failed to take into account relevant matters, misapprehended a point of fact or law, or was plainly wrong
Key legal issues
#Standard for interference by the full Court with a single judge's discretionary decision on a reference
The full Court interferes only where the single judge considered irrelevant matters, ignored relevant ones, misapprehended a point of fact or law, or was plainly wrong; it will not interfere merely because it would have decided differently.
The Court adopted the principles in Kenya Canners Ltd v. Titus Muiruri Doge: a reference is not an appeal, and the single judge exercises the full Court's own discretion, which cannot be upset easily. Some misdirection must be established. The Court found the single judge committed misdirections, satisfying the threshold for interference.
Reliance on a reversed single-judge decision (Habo Agencies)
The single judge misdirected herself by relying on the single-judge decision in Habo Agencies Ltd v. Wilfred Odhiambo Musingo, which had been reversed on reference by the full Court, which allowed the reference and extended time.
The single judge cited Habo Agencies for the proposition that inaction by counsel is not an excusable mistake. The full Court noted that on reference, the full Court in Habo Agencies found that the single judge there had misdirected himself by failing to consider relevant facts, allowed the reference and extended time. Reliance on the reversed single-judge decision rather than the full Court's decision was a misdirection.
Finding of no evidence where evidence existed on the record
The single judge misdirected herself in holding that there was no evidence substantiating the applicant's contention that the High Court file was unavailable, since a ruling on the stay application, delivered 2nd May 2024, was annexed to the application.
The single judge rejected the explanation that the court file was unavailable due to a pending stay application for want of evidence. The full Court observed that the High Court's stay ruling was on the record, making the contention plausible, and that the single judge did not consider that ruling before rejecting the contention. That was a failure to consider a relevant matter justifying interference.
Failure to consider prejudice and security for costs
The single judge failed to consider the applicant's payment of part of the decretal amount, the offer of security for costs, and the balance of prejudice, relevant matters that required consideration.
The applicant contended it had paid Kshs. 2,853,212 of the decretal amount, offered security for costs, and stood to suffer greater prejudice if denied the opportunity to appeal. Although the single judge recognised the need to balance competing interests, she did not determine where the balance tilted. Failure to consider these relevant issues was a valid ground for the full Court to interfere.
Legal principles established
#- A full Court will not interfere with a single judge's exercise of discretion unless the judge took into account irrelevant matters, failed to take into account relevant matters, misapprehended a relevant point of fact or law, or the decision was plainly wrong.
- A reference to the full Court is not an appeal, and a single judge's discretion under rule 4 is not easily upset except on sound principles; a breach of those principles entitles the full Court to interfere.
- A single judge should rely on the decision of the full Court rather than on the decision of a single judge that has been reversed on reference.
- Failure by a single judge to consider relevant issues, such as the payment of part of the decretal amount and an offer of security for costs, is a valid ground for the full Court to interfere.
Court orders
#- 1.The order of dismissal of the applicant's application for extension of time dated 7th June 2024 is set aside and substituted with an order allowing the application
- 2.The applicant shall file and serve the record of appeal within Twenty One (21) days from the date of the ruling
- 3.Costs of the reference shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Single judge of the Court of Appeal (ruling of J. Mohammed, JA)
- Jurisdiction invoked
- Rule 57 of the Court of Appeal Rules (reference to the full Court from a decision of a single judge)
Relief refused
#Costs of the reference were not awarded to either party outright
The Court directed that costs of the reference abide the outcome of the intended appeal rather than making an immediate award
Costs
Costs of this reference shall abide the outcome of the intended appeal.
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.
A reference to the full court is not an appeal although it is in the nature of one and in exercising the discretion under rule 4, the single judge was exercising the power on behalf of the full court and his discretion would not therefore be easily upset except on sound principles
the Court will not interfere with exercise of discretion by the single judge except where it is demonstrated that the single judge took into account irrelevant matters or failed to take into account relevant matters; misapprehended a relevant point of fact or law; or, looked at in its entirely, the decision of the single judge was plainly wrong.
The single judge ought to have relied on the decision of the full Court rather than on that of the single judge, which was reversed.
We set aside the order of dismissal of the applicant's application for extension of time dated 7th June 2024 and substitute therefore an order allowing the application.
The applicant shall file and serve the record of appeal within Twenty One (21) days from the date of this ruling. Costs of this reference shall abide the outcome of the intended appeal. It is so ordered.
Issues in the judgment
#The judgment recites the Kenyan Canners quotation twice in succession, the second time with formatting irregularities, suggesting a duplication error in the text.
The judgment refers to an error by 'the respondent' where context indicates the applicant: 'The only error that the respondent committed was to omit to serve the letter bespeaking the proceedings on the respondent's advocates as required by the Rules.'
The judgment states the application for certified copies was made 'On 22nd March 2022' though the judgment under appeal was dated 29th February 2024; the year appears to be a typographical error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "St John of God Hospital Tigania v Michubu (Legal Representative of the Estate of Agnes Kawira) (Civil Application E052 of 2024) [2026] KECA 744 (KLR)", Case Analysis (2026). Not stated in the judgment (reference to the full Court under rule 57 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/744/eng@2026-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.