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Court of AppealDismissedCivil Application No. Nai 232 of 2012· [2013] KECA 376 (KLR)

Delight Security Services Limited v Charles Ouma Oyugi [2013] KECA 376 (KLR)

Court of Appeal of Kenya
20 March 2013
AVAlnashir Visram
1,020 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to forgive a 32-day late appeal because the company never properly explained the delay or showed the appeal had a real chance.

What this practically means

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Executive summary

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This was a single-judge (in chambers) ruling of the Court of Appeal at Nairobi on an application under Rule 4 of the Court of Appeal Rules, 2010, by Delight Security Services Limited seeking extension of time to file and serve a notice of appeal and record of appeal out of time from the judgment of the Industrial Court (Rika, J.) of 3rd August 2012 in Industrial Court Cause No. 765 of 2011, an employment dispute. Counsel for the applicant deponed that instructions to appeal were received on 21st August 2012, after the 14-day statutory period had lapsed, and the application was filed on 14th September 2012, a delay of 32 days. The applicant, relying on two authorities, argued the delay was not inordinate and the appeal arguable. The respondent opposed, submitting the delay was unexplained, no cogent reason for discretion was offered, the appeal raised no points of law, and the respondent would be prejudiced. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi (length of delay, reason for delay, arguability, and prejudice), Visram, J.A. held the delay insufficiently explained: the applicant should itself have sworn an affidavit explaining the late instructions, the further 21-day delay was unexplained, and awaiting certified proceedings was not a valid reason since a notice of appeal does not require them. In the absence of a draft memorandum of appeal, arguability could not be ascertained. The court also held that granting the application would subvert the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act. The application was dismissed with costs to the respondent. The decision below was not disturbed.

Key legal issues

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01

Whether the delay was inordinate and sufficiently explained

Holding

The delay was not sufficiently explained. The applicant should have sworn an affidavit explaining the late instructions to counsel, and the further 21-day delay in filing after instructions was unexplained; applying for proceedings was not a valid reason for delaying the notice of appeal.

Reasoning

The court held that the applicant itself, not only counsel, should have sworn an affidavit explaining the delay in giving instructions. Even after instructions on 21st August 2012, the application was not filed until 14th September 2012. The excuse that proceedings were awaited was rejected because a notice of appeal does not require the proceedings, and the application was in fact filed without them.

p. 2
02

Whether the intended appeal was arguable

Holding

Arguability was not established because no draft memorandum of appeal was filed.

Reasoning

In assessing the third Mutiso factor - the chances of the appeal succeeding - the court noted that the applicant had not filed a draft memorandum of appeal, making it impossible to ascertain whether the intended appeal was arguable. This failure weighed against the exercise of discretion in the applicant's favour.

p. 2
03

Whether the overriding objective weighed against extension

Holding

Granting the extension would subvert the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act by giving rise to further delay.

Reasoning

The court invoked sections 3A and 3B of the Appellate Jurisdiction Act, which are aimed at the just and expeditious disposal of matters, holding that allowing the application would produce further delay in a matter in which the respondent had already alleged prejudice and a pattern of delay by the applicant.

p. 2

Legal principles established

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  • Rule 4 confers discretion to extend time, but it must be exercised judicially with reference to the length of the delay, the reason for the delay, the arguability of the appeal and prejudice to the respondent.
  • An applicant for extension of time must establish an arguable appeal by material such as a draft memorandum of appeal; without one, arguability cannot be ascertained.

Court orders

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  1. 1.Application for extension of time to file and serve notice of appeal and record of appeal dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010section 75(2)
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Kenya Commercial Bank Limited vs. Kenya Planters Cooperative Union
    (2010) eKLR
  • Deepak Chamanlal Kamani & Another vs. Kenya Anti-Corruption Commission & 3 Others
    (2010) eKLR
  • Beatrice Wambui Kigondu & 4 Others vs. Beatrice Muthoni Thumbi
    [2007] eKLR
  • Mansoor Jiwani t/a Computer City vs. Ovidian Advertising and Design Ltd
    [2006] eKLR
  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997
On appeal from
Industrial Court of Kenya at Nairobi
Industrial Court Cause No. 765 of 2011
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Delight Security Services Limited v Charles Ouma Oyugi [2013] KECA 376 (KLR)", Case Analysis (2013). Civil Application No. Nai 232 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/376/eng@2013-03-20

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