[2009] KECA 392 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL OF KENYA

AT NAIROBI

Civil Appli 10 of 2008 (7/2008)

VANTAGE ROAD TRANSPORTERS LTD....................................1ST APPLICANT

SHAHID PERVEZ BUTT.................................................................2ND APPLICANT

AND

MISTRY VALJI NARAN MULJI..............................................1ST RESPONDENT

JANENDRA RAICHAND SHAH............................................2ND RESPONDENT

VIRCHAND MULJI MALDE....................................................3RD RESPONDENT

RATILAL GHELA SAMAT........................................................4TH RESPONDENT

PREMAC PROPERTIES LTD.................................................5TH RESPONDENT

EQUATORIAL COMMERCIAL BANK LTD...........................6TH RESPONDENT

(Application for leave to file and serve notice of appeal out of time from the ruling of the High Court of Kenya at Mombasa (Mwera,Jj) dated 29th July, 2005

In

H.C.C. Suit No. 55 of 2005)

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RULING OF THE COURT ON REFERENCE TO FULL COURT

By their notice of motion dated 8th February, 2008 and lodged in Court on 11th February, 2008, the two applicants, Vantage Road Transporters Ltd. and Shahid Pervez Butt, asked a single member of the Court to grant to them under Rule 4 of the Court’s Rules an order that:-

“The Honourable Court be pleased to extend time limited for filing and service of notice of appeal and grant the Applicants herein leave to file and serve a fresh notice of Appeal against the ruling and orders of the superior court in Mombasa (Mr. Justice John Mwera) delivered on 29th July, 2005 out of time.”

That motion came for hearing before Bosire, J.A on 1st July, 2008 when Mr. Peter Kaluma, learned counsel for the applicants, fully argued their case and Mr. Satish Gautama, Senior Counsel, responded on behalf of the respondents. The learned single Judge then reserved his ruling to 31st July, 2008 and on that date the Judge gave a fully considered ruling and refused to extend time as had been sought in the motion. The applicants were dissatisfied with the learned single Judge’s decision and they have come before the full Court under Rule 54 (1) (b) of the Court’s Rules asking the full Court to vary, discharge or reverse the decision of the single Judge.

We state from the outset that Rule 4 under which the single Judge made his decision gave him unfettered discretion, of course to be exercised judicially, to decide the matter one way or the other. It is now trite law that where a single Judge has exercised a discretion under Rule 4, the full Court, on a reference under Rule 54 (1) (b) is not entitled to replace the exercise of the single Judge’s discretion with its (i.e. the full Court’s) discretion. The full Court is only entitled to interfere with the single Judge’s exercise of discretion if, and only if, it be shown that in coming to his decision, the single Judge took into account an irrelevant matter, or failed to take into account a relevant matter, or that he misapprehended the law or the facts of the case and thus came to a wrong decision or short of these, that the decision of the single Judge is perverse and no reasonable tribunal could have come to it, bearing in mind the facts and the law applicable to the case – see for example AFRICAN AIRLINES INTERNATIONAL LTD. VS. EASTERN AND SOUTHERN AFRICAN TRADE & DEVELOPMENT BANK [2003] 1 EA 1 and PURSHOTTAM RAMJI KOTECHA & ANOTHER VS. SANJAY NARANDAS PAN & ANOTHER [2005] eKLR.Again we must stress that a reference under Rule 54 is not equivalent to an appeal to the full Court from the decision of a single Judge.

With these principles in mind, Mr. Kaluma sought to persuade us that the learned single Judge in this case had applied wrong principle of law in coming to his decision. As far as we were able to gather from Mr. Kaluma’s submissions, the wrong principle applied by the single Judge was that the Judge took into account the fact that the applicants had not obtained leave to appeal from the decision of Mwera, J made way back on 29th July, 2007. But the truth of the matter is that to be able to lodge a competent appeal against the decision of Mwera, J. the applicants needed leave either of the Judge himself or leave of this Court. In one of its decisions arising from the numerous applications the applicants have made to the Court, the Court had itself stated as follows on the question of leave to appeal:-

“Regarding the prayer for leave to institute an appeal we note that rule 39 of this Court’s Rules fixes a time limit within which to seek such leave. We have no evidence that the appellants in the struck out appeal have either applied for or obtained an extension of time within which to seek leave. In the circumstances, we decline to grant leave sought and dismiss the prayer” – see Civil Appeal No. 274 of 2005 between the same parties and which was struck out by the Court on 27th July, 2007. ”

The learned single Judge specifically cited this passage in his ruling under reference and then concluded as follows:-

“What then is the position in this matter? The applicants have not obtained leave to appeal and from the look of things they might not obtain any.”

That position is correct in fact and we were informed that after the Court’s decision on leave the applicants once again returned to the superior court to seek leave. It was refused though we were told an appeal from the refusal is contemplated. But this latter issue was not before the learned single Judge and rule 54 (2) does not allow us to use it in the reference. It is sufficient for us to say that we are unable to discern any wrong principle applied by the learned single Judge. He was entitled to consider or take into account the issue of the applicants’ failure to obtain such leave.

The other matters raised by Mr. Kaluma, like his inexperience in practicing before this Court, can only earn him and his clients the sympathy of the Court but they cannot be the basis for our interfering with the exercise of a discretion by the single Judge. The discretion was correctly and properly exercised and that being our view of the matter, we order that the reference to the full Court by the applicants be and is hereby dismissed with the costs thereof to the respondents.

Dated and delivered at Nairobi this 13th day of February, 2009.

R.S.C. OMOLO

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JUDGE OF APPEAL

P.K. TUNOI

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JUDGE OF APPEAL

E.O. O’KUBASU

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR.