[2022] KECA 1431 (KLR)
The application was dismissed because the applicant failed to comply with the mandatory procedure for seeking a reference to a full bench after the dismissal of his motion by a single judge. Instead of requesting a reference as required by rule 55 (1) b of the Court of Appeal Rules, the applicant filed a fresh...
Source-derived case information.
- Citation
- [2022] KECA 1431 (KLR)
- Parties
- Applicant: Elphas Mwiti; Respondent: Kenya Power and Lighting Company; Respondent: Hon Attorney General
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 151 of 2018
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time and Review
- Outcome
- application dismissed
- Judges
- W Karanja
- Legal Topics
- Extension of Time, Review of Single Judge Decision, Reference to Full Bench
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elphas Mwiti
Applicant
Kenya Power and Lighting Company
Respondent
Hon Attorney General
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time and Review
Legal Issues
- 1 Whether the applicant is entitled to extension of time to file a reference from the decision of a single judge of the Court of Appeal.
- 2 Whether the court has jurisdiction to review the decision of a single judge or to constitute a three-judge bench in the circumstances.
Ratio Decidendi
The application was dismissed because the applicant failed to comply with the mandatory procedure for seeking a reference to a full bench after the dismissal of his motion by a single judge. Instead of requesting a reference as required by rule 55 (1) b of the Court of Appeal Rules, the applicant filed a fresh application seeking extension of time, review, and constitution of a three-judge bench. The court held that it had no jurisdiction to entertain the application for review or to constitute a bench in the absence of a proper reference. The application was therefore found to be incompetent, bad in law, and devoid of merit.
Court Disposition
application dismissed
Orders
- The application is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
Mwiti v Kenya Power and Lighting Company & another (Civil Application 151 of 2018) [2022] KECA 1431 (KLR) (14 October 2022) (Ruling)
Neutral citation: [2022] KECA 1431 (KLR)
Republic of Kenya
In the Court of Appeal at Nyeri
Civil Application 151 of 2018
W Karanja, JA
October 14, 2022
Between
Elphas Mwiti
Applicant
and
Kenya Power and Lighting Company
1st Respondent
Hon Attorney General
2nd Respondent
(Application seeking extension of time within which to file reference from the decision of the Court of Appeal at Nyeri (J,Mohamed. J.A) dated 7th August 2020 in Nyeri COA Civil Application No. 151 of 2018 Civil Application 151 of 2018,
Civil Appeal 49 of 2016 )
Ruling
1. On August 7, 2020 this court, (J.Mohamed, JA) sitting as single judge dismissed the applicant’s motion for extension of time to file an appeal out of time against the judgment of the High Court (Ngaah Jairus, J) delivered on April 20, 2016. Following the said dismissal, the only recourse available to the applicant pursuant to rule 55 (1) b of the Court of Appeal Rules was to either orally request the court to refer the matter for reference before a full bench, or write to the registrar of the court within 7 days and request for the said reference. The applicant did not do so. It would appear that he filed this application which I am sad to say has serious challenges. To start with I cannot tell the date the application was filed. Figure this. The application is dated 21st Monday 2020. The court stamp from the registry on the other hand reads 30th September 20. Putting the two dates together, I can safely conclude that the application could have been filed on September 21, 2020.
2. In the application, the applicant seeks leave to appeal out of time; he asks for a review of the ruling of Judge J. Mohammed dismissing his application; and that the court “constructs” a 3 judge bench to hear his application.This application is a non- starter for the following reasons. Firstly, this is not a reference to full court. I have explained the process to be followed when one is dissatisfied with a decision of single judge. He did not request for a reference as provided under rule 55 (1) b but instead filed this application which as it stands is incompetent. I have no jurisdiction to review the decision of the single judge; nor can I “construct” a bench to hear the applicant’s application.
3. Consequently, I find this application irredeemably bad in law and devoid of merit and dismiss it with no order as to costs.
DATED AND DELIVERED AT NYERI THIS 14TH DAY OF OCTOBER 2022. W. KARANJA….…………………………….JUDGE OF APPEALI certify that this is atrue copy of the original.DEPUTY REGISTRAR