Bunson Travel Limited v Kizito Injila Mwenesi [2015] KECA 779 (KLR)
The bottom line
#The Court of Appeal refused to forgive a company's six-month delay in filing an appeal, confirming that boardroom indecision is no excuse for missing filing deadlines.
What this practically means
#Executive summary
#Key legal issues
#Parameters for interfering with a single Judge's decision on reference to full court
The full court will interfere only where the single Judge took into account an irrelevant matter, failed to consider a relevant matter, misapprehended the applicable law, or was plainly wrong.
The court adopted the four Gitetu parameters as the settled test. Since the reference is not an appeal, the applicant had to demonstrate a departure from laid-down principles, not merely that a different outcome was possible. On the facts, the Judge had considered the length of delay, its explanation, and prejudice, exercising his discretion judicially, so there was no basis for interference.
Explanation for the delay in filing the notice of appeal
A Board of Directors' deliberation on whether to appeal is no excuse; filing a notice of appeal is a simple mechanical task that should be done promptly to preserve the right of appeal.
Counsel conceded the judgment was received on time, but the applicant took months to give instructions, and even after a prior dismissal by the Industrial Court it waited three more months. Citing Bi-machi Engineers, the court held nothing prevented counsel from filing the notice of appeal within time while awaiting further instructions, and no plausible reason was given for the delay.
Prejudice to the respondent
Having to defend an appeal, with the inevitable expense and anxiety, is of itself prejudicial to a respondent.
The applicant argued the respondent would suffer no prejudice if extension was granted. The court rejected this, holding that being compelled to defend an appeal carries inherent expense and anxiety amounting to prejudice, reinforcing the single Judge's discretionary assessment.
Legal principles established
#- A single Judge of the Court of Appeal exercises the discretion of the whole court, judicially and on settled principles, and a full court on reference will interfere only on the Gitetu parameters (irrelevant consideration, failure to consider a relevant matter, misapprehension of law, or being plainly wrong).
- A reference to the full court is not an appeal; it is not enough that the full court might have reached a different result.
- Whether a delay is inordinate depends on the peculiar circumstances of each case.
Court orders
#- 1.The reference/application is dismissed for lack of merit
- 2.No orders as to costs
- On appeal from
- Industrial Court of Kenya at Nairobi (now Employment and Labour Court)
- Industrial Cause No. 1083 of 2011
- Jurisdiction invoked
- Rule 4 and Rule 55 of the Court of Appeal Rules (reference to full court from a single Judge's dismissal of an extension-of-time application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bunson Travel Limited v Kizito Injila Mwenesi [2015] KECA 779 (KLR)", Case Analysis (2015). Civil Application No. NAI 241 of 2013 (UR 175/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/779/eng@2015-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.