[2005] KECA 247 (KLR)
The Court of Appeal held that the single Judge's refusal to reinstate the applicant's motion for extension of time, without providing any reasons, was not a proper exercise of judicial discretion. The absence of reasons for the decision constituted a sufficient ground for the full Court to interfere with the single...
Source-derived case information.
- Citation
- [2005] KECA 247 (KLR)
- Parties
- Applicant: Joseis Wanjiru alias Joseis Wairimu; Respondent: Kabui Ndegwa Kabui (Personal Representative of Ndegwa Kabui (Deceased)); Respondent: Catherine Wairimu Baaru
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 110 of 1996
- Procedural Posture
- Civil Application / Reference to Full Court From Single Judge's Order
- Outcome
- reference allowed; order refusing reinstatement reversed; motion reinstated for hearing on merits
- Legal Topics
- Extension of Time, Reinstatement of Application, Judicial Discretion, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseis Wanjiru alias Joseis Wairimu
Applicant
Kabui Ndegwa Kabui (Personal Representative of Ndegwa Kabui (Deceased))
Respondent
Catherine Wairimu Baaru
Respondent
Procedural Posture
Civil Application / Reference to Full Court From Single Judge's Order
Legal Issues
- 1 Whether the single Judge erred in refusing to reinstate the applicant's motion for extension of time without giving reasons.
- 2 Whether failure to give reasons for a judicial decision constitutes a valid ground for interference by the full Court.
Ratio Decidendi
The Court of Appeal held that the single Judge's refusal to reinstate the applicant's motion for extension of time, without providing any reasons, was not a proper exercise of judicial discretion. The absence of reasons for the decision constituted a sufficient ground for the full Court to interfere with the single Judge's exercise of discretion. Accordingly, the Court allowed the reference, reversed the order refusing reinstatement, and ordered that the applicant's motion for extension of time be reinstated for hearing on its merits. The costs of the reference were ordered to be in the cause of the reinstated motion.
Court Disposition
reference allowed; order refusing reinstatement reversed; motion reinstated for hearing on merits
Orders
- The reference is allowed.
- The order refusing to reinstate the motion of 13th March, 1996 is reversed.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NYERI
(CORAM: OMOLO, O’KUBASU, JJ.A & DEVERELL, AG. J.A)
CIVIL APPLICATION NO. NAI 110 OF 1996 (NYR. 14/1996)
BETWEEN
JOSEIS WANJIRU ALIAS JOSEIS WAIRIMU ……………………… APPLICANT
AND
KABUI NDEGWA KABUI (Personal Representative of NDEGWA KABUI (DECEASED) }
CATHERINE WAIRIMU BAARU } ….…................................................……… RESPONDENTS
(An Application for extension of time to file Notice and Record of Appeal out of time in an intended Appeal from a judgment of the High Court of Kenya at Nyeri (Tunoi, J) dated 13th February, 1992
in
H.C.C.C. NO. 71 OF 1982)
***************************
RULING OF THE COURT
The matter before us to-day is the order of the single Judge dated 26th October, 2000. The applicant had filed a notice of motion dated 13th March, 1996. She had sought in that motion extension of time to enable her file a notice of appeal and a record of appeal out of time. When that motion came up for hearing, the applicant’s counsel and the applicant herself were not present to urge it. The motion was dismissed, as there was nobody present to urge it.
The applicant thereafter applied to the Court to reinstate the dismissed motion. She was entitled to do so under rule 55(3) of the Court’s rules. KWACH, JA, heard the application for reinstatement. In an order dated 26th October, 2000, the learned single Judge ordered as follows:-
“Application for reinstatement refused. Costs to the respondent.”
No reason was given for that decision and in our view that is not a correct exercise of Judicial discretion. The failure to give any reason for the decision is itself a ground, which entitles the full Court to interfere with a single Judge’s exercise of discretion.
We accordingly allow the reference, reverse the order refusing to reinstate the motion of 13th March, 1996 and order the latter motion reinstated to hearing on its merit.
The costs of the reference shall be in the reinstated motion.
Dated and delivered at Nyeri this 12th day of May, 2005.
R.S.C. OMOLO
……………………………
JUDGE OF APPEAL
E.O. O’KUBASU
…………………………..
JUDGE OF APPEAL
W.S. DEVERELL
……………………………..
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.