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Court of AppealPartially AllowedCivil Application (extension of time) arising from Kisumu HCCC No. 154 of 2000· [2009] KECA 403 (KLR)

Manase Onyimbi v Board of Management of Kenya Medical Research Institute & another [2009] KECA 403 (KLR)

Court of Appeal of Kenya
16 January 2009
2,055 words in judgment
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The bottom line

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Kenya's Court of Appeal can extend time to appeal even after a long delay, especially when the delay stems from an advocate's failure or registry problems.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu by Aluoch, JA, delivered on 16 January 2009, on an application under rules 4 and 42 of the Court of Appeal Rules. The applicant, acting in person, sought extension of time to lodge and serve a Notice of Appeal and Record of Appeal against the judgment of Tanui, J of 14 November 2003 in Kisumu HCCC No. 154 of 2000, which dismissed his employment claims against the respondents. A prior Record of Appeal, Civil Appeal No. 34 of 2005, was struck out on 19 June 2008 because it had not been filed and served within the 14 days allowed by Githinji, JA's ruling of 1 December 2005. The respondent opposed, citing a 32-day delay in bringing the fresh application, an allegedly unexplained delay, and the absence of an annexed draft Memorandum of Appeal. The Court applied the settled Mutiso factors: the 32-day delay was modest and attributable to the applicant's former advocate and to registry delays; the replying affidavit asserting the delay was unexplained was served in the court corridors on the hearing day despite counsel having the applicant's postal address; and the memorandum's grounds had already been considered by Githinji, JA, who found the appeal concerned loss of employment and concomitant benefits. The Court allowed the application, directed the Record of Appeal to be filed and served within 14 days, and awarded the respondent the costs of the application. The underlying High Court judgment was not disturbed by this ruling.

Key legal issues

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01

Exercise of the rule 4 discretion on extension of time

Holding

The discretion is unfettered but guided by the four Mutiso factors; on the facts the discretion was exercised in favour of the applicant.

Reasoning

The Court applied the settled factors: length of delay (32 days), reason for delay (advocate's failure to file the Record within 14 days as directed, followed by difficulties retrieving the file after discharging him and a delay in releasing documents from the registry), arginability of the appeal, and prejudice to the respondent. The applicant, acting in person, filed promptly after the striking out. Late service of the replying affidavit also weighed in his favour.

p. 5
02

Effect of late service of the replying affidavit on alleged unexplained delay

Holding

The complaint of an unexplained 32-day delay was discounted because the replying affidavit was served on the applicant just before the hearing, depriving him of a chance to respond.

Reasoning

Counsel for the respondent admitted he had the applicant's postal address but did not use it, serving the affidavit in the court corridors on the hearing day. The Court held the applicant might have filed a supplementary affidavit had he been served in good time, so the assertion that the delay was unexplained could not stand against him.

p. 4
03

Failure to annex a draft Memorandum of Appeal

Holding

Not fatal where the memorandum had been annexed to, and considered in, a prior application before Githinji, JA, on the same grounds.

Reasoning

The applicant explained that the draft memorandum was attached to the earlier application decided by Githinji, JA, and that the grounds remained the same. The Court noted Githinji, JA's findings that although the grounds were general, the appeal concerned loss of employment and concomitant benefits and raised some grounds, and did not treat the omission as disqualifying.

Legal principles established

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  • In deciding whether to extend time for appealing the Court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.Extension of time granted to lodge and serve the Record of Appeal out of time
  2. 2.Record of Appeal to be filed and served within 14 days from the date of the ruling
  3. 3.Respondent awarded the costs of the application
On appeal from
High Court of Kenya at Kisumu
Kisumu HCCC No. 154 of 2000
Jurisdiction invoked
Rules 4 and 42 of the Court of Appeal Rules (extension of time)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Manase Onyimbi v Board of Management of Kenya Medical Research Institute & another [2009] KECA 403 (KLR)", Case Analysis (2009). Civil Application (extension of time) arising from Kisumu HCCC No. 154 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/403/eng@2009-01-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.