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Court of AppealPartially AllowedNotice of Motion dated 11th August 2014 (arising from Industrial Court Cause No. 1752 of 2011)· [2014] KECA 332 (KLR)

Eastleigh Mattresses Ltd v Stephen Mihang’o Kariuki & 2 others [2014] KECA 332 (KLR)

Court of Appeal of Kenya
10 October 2014
2,409 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a late appeal application, ruling that a 21-day delay was excusable and proof of appeal success isn't required at this stage.

What this practically means

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Executive summary

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The applicant, Eastleigh Mattresses Ltd, was the defendant in Industrial Court Cause No. 1752 of 2011 before Rika J, who on 1st July 2014 awarded the three respondents terminal benefits. The applicant's counsel was not served with notice of delivery of the judgment and learned of it only around 10th July 2014 through correspondence demanding payment; he obtained a copy of the judgment on 23rd July 2014 and on 13th August 2014 lodged a Notice of Motion under Rule 4 of the Court of Appeal Rules and section 3A of the Appellate Jurisdiction Act seeking extension of time to lodge a notice of appeal against part of the judgment. The respondents opposed, contending the application was an afterthought and designed to deny them the fruits of the judgment. The court, exercising the single judge's unfettered discretion under Rule 4, identified the governing criteria: the delay must not be inordinate or must be satisfactorily explained, there may be chances of success, and prejudice to the respondent must be nil or negligible, each case being decided on its own merits. It held that counsel's 21-day delay after perusing the judgment was not inordinate given the need to take instructions and draw pleadings, that failure to annex a draft memorandum caused no prejudice, and that an applicant at this stage need not show chances of success so long as the appeal is not frivolous. The application was allowed with time extended by seven days, but the applicant was ordered to pay the respondents' costs of the application in any event. This ruling binds subordinate courts and tribunals on the criteria for extension of time under Rule 4.

Key legal issues

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01

Whether the 21-day delay in lodging the application for extension of time after perusing the judgment was inordinate

Holding

The delay was not inordinate and was satisfactorily explained, given that instructions had to be sought and obtained and pleadings and affidavits drawn and signed by clients.

Reasoning

Counsel was never served with notice of delivery of judgment and could not lodge a notice of appeal until he perused the judgment on 23.7.2014, since the claim was pecuniary and the basis of the award could only be deciphered from the judgment itself. Although the court accepted that counsel dithered somewhat in taking 21 days after perusal, that period could not be described as inordinate in the circumstances. The failure to annex a draft memorandum of appeal caused no prejudice.

p. 5
02

Whether chances of success of the intended appeal must be shown on an extension-of-time application

Holding

No; at this stage it is not necessary to show chances of success, provided the appeal is not frivolous or a non-starter.

Reasoning

The court held that the absence of a draft memorandum of appeal, though desirable, did not prejudice the application, and that the chances-of-success factor should not weigh against the grant of extension where the supporting affidavit shows the appeal is not frivolous. This qualifies the usual factors under rule 4 and reflects the overriding objective of facilitating the just determination of proceedings.

p. 5

Legal principles established

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  • Rule 4 confers an unfettered discretion on the court (including a single judge) to extend time, to be exercised judicially and on a case-by-case basis, taking into account relevant factors including those outside any listed set.
  • The court will extend time to file a notice of appeal where the delay is not inordinate or is satisfactorily explained, there are (possibly) chances of the appeal succeeding, and prejudice to the respondent is none or negligible, each case being decided on its own merits.
  • An applicant for extension of time need not, at that stage, demonstrate that the intended appeal has chances of success; it suffices that the appeal is not frivolous or a non-starter.

Court orders

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  1. 1.Time to lodge Notice of Appeal against the judgment of the Industrial Court delivered on 1.7.2014 in Cause No.1752 of 2011 extended by 7 days from the date of the ruling
  2. 2.The applicant shall pay to the respondents the costs of the application in any event

Authorities

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Legislation

  • Industrial Court ActSection 17(1) and (2)
  • Appellate Jurisdiction Act (Cap 9)Section 3A(1)
  • Appellate Jurisdiction Act (Cap 9)Section 3B(1)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75(1) and (2)
  • Constitution of KenyaArticle 164(3)

Cases cited (3)

  • Trust Bank Ltd. vs Amolo Company Ltd
    C.A. No. 215 of 2000
  • Kettewman V Hansel Properties Ltd
    [1958] 1 ALL ER 38
  • Mwangi v Kenya Airways Ltd
    [2003] KLR 48
On appeal from
Industrial Court (Employment and Labour Relations Court), Nairobi
Cause No. 1752 of 2011
Jurisdiction invoked
Section 17(1) and (2) of the Industrial Court Act (Act No. 20 of 2011) in accordance with Article 164(3) of the Constitution; Rule 4 of the Court of Appeal Rules and section 3A(1) of the Appellate Jurisdiction Act (Cap 9)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Eastleigh Mattresses Ltd v Stephen Mihang’o Kariuki & 2 others [2014] KECA 332 (KLR)", Case Analysis (2014). Notice of Motion dated 11th August 2014 (arising from Industrial Court Cause No. 1752 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/332/eng@2014-10-10

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