Wakilii

A.G. of Kenya v Nyong'o and Others (Appeal 1 of 2009)

East African Court of Justice · [2010] EACJ 4 · 2010 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from ruling of single judge of First Instance Division refusing extension of time to file taxation reference
Decision
Appeal dismissed with costs to the Respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Appellate Division held that it has jurisdiction to hear appeals directly from rulings of single judges of the First Instance Division where Article 35A of the Treaty permits appeals on points of law, lack of jurisdiction, or procedural irregularity, notwithstanding Rule 59(3). The Court dismissed the appeal, holding that the single judge properly exercised his discretion in refusing extension of time, as the Attorney General failed to discharge the burden of proving sufficient reason for the 90-day delay under Rule 4.

Outcome

Appeal dismissed with costs to the Respondents

Facts

The Respondents successfully challenged Kenya's nomination and election process for EALA representatives before the EACJ First Instance Division. The Court ordered the Government of Kenya to pay costs. The Respondents' advocates lodged a bill of costs for US$5,622,528.69, which the Registrar as Tax Master taxed to US$2,033,164.99 on 19 December 2008. The Attorney General sought to appeal the taxation but filed his taxation reference out of time. He applied for extension of time on 3 April 2009. A single judge dismissed the application. The Attorney General then filed multiple applications for extension of time to appeal that dismissal, each itself filed out of time. Eventually the Appellate Division granted extension of time to serve the memorandum of appeal, leading to the substantive hearing of the appeal against the single judge's refusal to extend time.

Issues

  1. Whether the Appellate Division has jurisdiction to hear an appeal directly from a ruling of a single judge of the First Instance Division given Rule 59(3) and Rule 83 of the Court Rules.
  2. Whether the learned single judge properly exercised his discretion in refusing the Attorney General's application for extension of time to file a taxation reference.
  3. Whether the delay in filing was sufficiently explained by Christmas vacation, counsel's family tragedy, and internal government consultations.
  4. Whether extension of time should have been granted on grounds of public interest given the magnitude of the costs award.

Orders

  • Appeal dismissed.
  • Costs of the appeal and of the related proceedings in both the Appellate Division and the First Instance Division awarded to the Respondents.

Rules and key headnotes

Civil Procedure — Appellate Jurisdiction — Right of Appeal from Single Judge to Appellate Division
Where Article 35A of the EAC Treaty permits appeals to the Appellate Division on points of law, lack of jurisdiction, or procedural irregularity, and where Rule 77 of the Court Rules mirrors Article 35A, an appeal lies directly from a single judge of the First Instance Division to the Appellate Division notwithstanding Rule 59(3) which appears to require an appeal first to the full bench of the First Instance Division. Where subsidiary legislation conflicts with the parent Treaty, the Treaty prevails.
Statutory Interpretation — Hierarchy of Legislation — Treaty Provisions versus Court Rules
It is a fundamental doctrine of statutory interpretation that where subsidiary legislation such as court rules conflict with or are inconsistent with provisions of parent legislation such as a treaty, the provisions of the subsidiary legislation must yield to those of the parent legislation to the extent of the conflict or inconsistency. Court rules derive their life and existence from the treaty and are of inferior legal hierarchy.
Civil Procedure — Extension of Time — Standard of Review on Appeal
An appellate court may interfere with the exercise of a trial judge's discretion to grant or refuse extension of time only where the judge misdirected himself in law, misapprehended the facts, took into account irrelevant factors, failed to take into account relevant factors, or reached a decision which is plainly wrong. The question is not whether the decision was right or wrong but whether the judge exercised his discretion judicially.
Civil Procedure — Extension of Time — Burden of Proof
The duty of placing necessary evidence before the court to enable it to exercise its discretion to extend time lies squarely on the applicant. Discretion must be exercised on the basis of evidence and sound legal principle. Where an applicant seeks extension of time on grounds such as counsel's personal difficulties or consultations, the applicant must prove those facts with sufficient documentary or other evidence, not mere assertion.
Civil Procedure — Extension of Time — Public Interest Not Automatic Ground
The fact that payment of costs by the Attorney General from the public treasury affects taxpayers does not automatically constitute a ground of public interest or public policy sufficient to warrant extension of time. There is a world of difference between what is in the public interest and what is of interest to the public. Payment of lawful litigation costs by the Attorney General is neither unlawful nor immoral and does not offend public policy.
Civil Procedure — Finality of Litigation — Repeated Applications Out of Time
Equity eschews indolence. Where an applicant has engaged in a protracted series of applications for extension of time, each filed out of time, resulting in inordinate delay of approximately 90 days, the court may exercise its inherent power under the rules to refuse further extensions in order to give effect to the principle of finality to litigation and the successful party's right to enjoy the fruits of judgment.

Legislation cited (14)

  • Treaty for the Establishment of the East African Community Art.2
  • Treaty for the Establishment of the East African Community Art.35A
  • Treaty for the Establishment of the East African Community Art.42(1)
  • Treaty for the Establishment of the East African Community Art.50
  • East African Court of Justice Rules of Procedure Rule 1(2)
  • East African Court of Justice Rules of Procedure Rule 2
  • East African Court of Justice Rules of Procedure Rule 3
  • East African Court of Justice Rules of Procedure Rule 4
  • East African Court of Justice Rules of Procedure Rule 19
  • East African Court of Justice Rules of Procedure Rule 59
  • East African Court of Justice Rules of Procedure Rule 77
  • East African Court of Justice Rules of Procedure Rule 83
  • East African Court of Justice Rules of Procedure Rule 89(1)
  • East African Court of Justice Rules of Procedure Rule 114

Cases cited (14)

  • Mwangi v Kenya Airways Ltd [2003] KLR 486
  • Mbogo v Shah [1968] EA 93
  • Boney Katatumba v Waheed Karim (Civil Application No. 27 of 2007)
  • Mohamed & Muigai Advocates v Kang'ethe & Co. Advocates (HCCS No. 234 of 1999)
  • Zam Nakumansi v Suleman Lule (Civil Application No. 02 of 1999)
  • Bogetutu Farmers v Mohamed Hassan Yonis (HCCC No. 154 of 1992)
  • Phoebe Ndunda and Others v Mwakini Ranch Co. Ltd and Kitui Town Council (Civil Application No. NAI.448 of 2001)
  • Paul Njoroge v The Attorney General and Others (HC Misc Case No. 90 of 2004)
  • Wasike v Khisa and Another (Civil Application No. 248 of 2003) [2004] 1 KLR 197
  • Lim Laboratories Ltd v Evans [1984] 2 All ER 417
  • Egerton v Brownlow (Earl) (1853) 4 HL Cas 14
  • Janson v Dreifontein Consolidated Mines Ltd [1902] AC 491
  • Bowman v Secular Society Ltd [1917] AC 427
  • Richardson v Mellish (1824) 2 Bing 229

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

A.G. of Kenya v Nyong'o and Others (Appeal 1 of 2009) [2010] EACJ 4 (1 August 2010)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.