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Court of AppealAllowedCivil Application (Motion dated 22nd August, 2014)· [2014] KECA 57 (KLR)

Abyssinia Iron & Steel Ltd v Kenya Engineering Workers Union [2014] KECA 57 (KLR)

Court of Appeal
8 November 2014
SKS. ole Kantai
1,235 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal let a company appeal late because it acted quickly otherwise, showing courts will forgive honest filing mistakes if the appeal has merit.

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 (ole Kantai, JA) on a Motion dated 22nd August 2014 brought by Abyssinia Iron & Steel Limited under Section 3(1) of the Appellate Jurisdiction Act and Rules 4, 41, 42 and 49 of the Court of Appeal Rules, 2010, seeking leave to file and serve a Notice of Appeal and Record of Appeal out of time against a judgment of the Industrial Court (Wasilwa, J, delivered 25th February 2014) in Cause No. 74 of 2013, which ordered the applicant to recognise the respondent union. No Notice of Appeal was filed within the stipulated period; the applicant had, however, written to the court the day after judgment requesting proceedings, and later changed advocates. The respondent, though served, did not attend the hearing. The judge restated the settled Rule 4 factors - length of and reason for delay, the chances of the appeal succeeding, and prejudice to the respondent - drawing on the Court of Appeal's own decisions in Patel v Waweru, Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Pothiwalla v Kidogo Basi Housing Co-operative Society Ltd, and Muchugi Kiragu, all of which were applied. Holding that the applicant had been vigilant, that the failure to file the Notice of Appeal was an excusable mistake, and that the draft memorandum raised arguable points, the court granted the application, ordering the Notice of Appeal to be filed and served within seven days and the Record of Appeal within fourteen days thereafter, with costs of the Motion to abide the intended appeal.

Key legal issues

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01

Whether the delay in filing the Notice of Appeal was excusable and whether extension of time should be granted

Holding

Extension granted: the applicant applied for proceedings the day after judgment, showing vigilance, and the failure to file the Notice of Appeal was an excusable mistake; the draft memorandum raised arguable points and no prejudice to the respondent was shown.

Reasoning

The court applied the settled Rule 4 factors: length and reason for delay, arguability of the intended appeal, and prejudice to the respondent. The applicant's prompt request for proceedings evidenced vigilance; the failure to file the Notice appeared attributable to inadvertence after new advocates were appointed. The draft memorandum of appeal disclosed arguable points, and the unrepresented respondent did not demonstrate prejudice.

p. 3

Legal principles established

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  • In an application under Rule 4 the Court exercises an unfettered discretion, guided by the length of and reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent.

Court orders

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  1. 1.Leave granted to file and serve a Notice of Appeal within seven (7) days
  2. 2.Record of Appeal to be filed and served within fourteen (14) days thereafter
  3. 3.Costs of the Motion to abide the hearing and determination of the intended appeal

Authorities

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Legislation

  • Appellate Jurisdiction Act, Cap 9 Laws of KenyaSection 3(1)
  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 41
  • Court of Appeal Rules, 2010Rule 42
  • Court of Appeal Rules, 2010Rule 49

Cases cited (4)

  • Patel V Waweru & 2 Others
    (2003) KLR 361
  • LEO SILA MUTISO V ROSE HELLEN WANGARI MWANGI
    Civil Application No. NAI 251 of 1997 (unreported)
  • Pothiwalla V Kidogo Basi Housing Co-Operative Society Ltd & 31 Others
    [2003] KLR 74
  • Muchugi Kiragu V James Muchugi Kiragu & Another
    Civil App. NO. NAI 356 of 1996
On appeal from
Industrial Court
Industrial Court Cause No. 74 of 2013
Jurisdiction invoked
Section 3(1) of the Appellate Jurisdiction Act, Cap 9 and Rules 4, 41, 42 and 49 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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Cite this brief

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Cite this brief

Caselaw, "Abyssinia Iron & Steel Ltd v Kenya Engineering Workers Union [2014] KECA 57 (KLR)", Case Analysis (2014). Civil Application (Motion dated 22nd August, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/57/eng@2014-11-08

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