Universities Non-Teaching Staff Union (Untesu) v Moi University [2014] KECA 527 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a union to appeal four months late, ruling that a blameless client should not suffer for their lawyer's clerical mistakes.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of explanation for delay where the default was caused by a clerk in counsel's office
Counsel's explanation attributing the default to an unnamed clerk was reasonable; failure to name the clerk or annex that clerk's affidavit attracts no penal consequence, and the blameless client should not suffer.
The court took judicial notice that routine chores in advocates' offices are performed by clerks or secretaries. Citing Lee G. Muthoga v Habib Zuruch Finance and Joseph Njuguna Muniu v Medicino Glovani, it held that once counsel accepts the omission, it is immaterial who the clerk was or why they forgot. No reckless or indifferent conduct was displayed, and both the notice and the proceedings request had been signed within time.
Prejudice to the respondent if extension is granted
No immediate benefits flowed to the respondent from the decision below, since the trial court had merely declined to order deduction of agency fees; any prejudice could be compensated by costs.
The court assessed the fourth Mutiso factor. Because the Industrial Court ruling simply refused an order for deduction of agency fees in the applicant's favour, the respondent gained no immediate advantage from it. The prejudice factor therefore weighed in favour of granting the extension.
Whether arguability of the intended appeal is a mandatory requirement under Rule 4
Arguability is not mandatory under Rule 4, but where raised, the court may interrogate it; here the grounds challenged the trial judge's exercise of discretion and warranted a second opinion.
The court held that Rule 4 does not make arguability a prerequisite, yet examined the draft grounds. Faulting a trial judge's exercise of judicial discretion offered good ground for appellate review. Denying the extension would contravene Article 159(2)(d) and the overriding objective by elevating procedure over substantive justice and causing further delay through a reference to a full bench.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, and 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.
- It is not necessary for a client's counsel to name the specific clerk who failed to perform procedural steps, nor to furnish an affidavit from that clerk, where counsel explains the default; mistakes of clerical staff in busy advocates' offices may constitute sufficient cause.
- Where a delay is occasioned by counsel's clerical error, the blameless client should not be denied substantive justice, consistent with Article 159(2)(d) of the Constitution.
Court orders
#- 1.The application dated 20th September 2013 is allowed with costs to the Respondent
- 2.The applicant's advocates' office is to meet the costs of the application to the Respondent
- 3.Leave granted to lodge and serve the notice of appeal out of time within seven (7) days of the reading of the ruling
- 4.The record of appeal to be lodged within thirty (30) days of the lodging of the notice of appeal
- 5.In default of the above timelines, the leave granted to lodge the documents out of time to stand lapsed
- On appeal from
- Industrial Court of Kenya
- Industrial Court Cause No. 1649 of 2011
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4 and 42 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mary Wanjiku Muchina v Riverdale Blooms Limited [2015] KEELRC 1237 (KLR)[2015] KEELRC 1237 (KLR)29 Jan 2015
Cite this brief
#Cite this brief
Caselaw, "Universities Non-Teaching Staff Union (Untesu) v Moi University [2014] KECA 527 (KLR)", Case Analysis (2014). Civil Application (Nairobi) arising from Industrial Court Case No. 1649 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/527/eng@2014-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.