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Court of AppealDismissedCivil Application No. Nai 216 of 2014· [2015] KECA 943 (KLR)

Banking Insurance & Finance Union v Harambee Co-operative Savings & Credit Society

Court of Appeal
20 February 2015
SKS. Gatembu Kairu
1,506 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a union more time to appeal because it waited eight months without explaining the delay or chasing its lawyers.

What this practically means

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Executive summary

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This is a ruling by Gatembu, J.A. sitting in chambers on the Banking Insurance & Finance Union's notice of motion dated 15th August 2014 seeking extension of time to file and serve a notice of appeal and record of appeal against the Industrial Court's judgment of 9th December 2013 (Nzioki wa Makau, J.) in Industrial Court Cause No. 555 of 2010, which dismissed the Union's claim for reliefs for alleged unlawful redundancy of 52 of its members, finding the redundancy lawful and fair. The application was brought under rule 4 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act. The notice of appeal should have been lodged by 16th January 2014, but the application was not presented until 19th August 2014 - a delay of just over eight months. The applicant's former advocate deposed that his clerk inadvertently failed to file a prepared notice of appeal. The court applied the settled Mutiso factors and accepted the equitable principle that a party should not be penalised for counsel's mistakes, citing Philip Chemwolo and Belinda Murai. However, it held that each case turns on its own circumstances: the applicant failed to show it followed up with its former advocates, did not indicate when it discovered the omission, and did not explain waiting a further one and a half months after receiving typed proceedings on 25th June 2014. The court found it unnecessary to consider the arguability of the intended appeal or prejudice to the respondent. The application was dismissed with no orders as to costs, the respondent not having appeared though served.

Key legal issues

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01

Whether the delay of just over eight months in filing the notice of appeal was adequately explained

Holding

The delay was not adequately explained; the applicant did not follow up with its former advocates and did not explain the further one-and-a-half-month delay after receiving typed proceedings

Reasoning

The court applied the Mutiso factors. The notice of appeal should have been lodged by 16th January 2014 but the application came only on 19th August 2014. The applicant gave no date of discovery of the advocates' omission, showed no follow-up, and did not explain the delay after receiving proceedings on 25th June 2014. Each case must be considered on its own peculiar circumstances.

p. 2
02

Whether the applicant should be excused from the mistake of its former advocates

Holding

The broad equity principle against penalising a party for counsel's mistakes exists, but it requires the party to furnish reasons for delay and show prompt remedial action, which was not done

Reasoning

The court accepted the Philip Chemwolo and Belinda Murai principles that mistakes should not automatically shut out a litigant, but held these must be applied to each case's peculiar circumstances. It is not enough to invoke the principle; the applicant must demonstrate diligence after discovering the mistake, which it failed to do.

p. 3

Legal principles established

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  • Extension of time under rule 4 is discretionary and is governed by the length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent
  • A party seeking extension of time must furnish reasons for the delay and demonstrate prompt remedial action on discovering an advocate's mistake; the plea of not penalising a party for counsel's mistake alone is insufficient

Court orders

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  1. 1.The applicant's application dated 15th August 2014 and filed on 19th August 2014 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 74(2)
  • Court of Appeal Rulesrule 3
  • Appellate Jurisdiction Actsections 3A and 3B

Cases cited (3)

  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997

    Factors for extension of time: length of delay, reason for delay, chances of appeal succeeding, prejudice to respondent

  • Philip Chemowolo & another v Augustine Kubede
    (1982-88) KAR 103

    Broad equity approach: a party should not suffer penalty for a mistake absent fraud or intention to overreach

  • Belinda Murai & 9 others –vs- Amos Wainaina
    CA No. Nai. 9 of 1978

    A mistake is a mistake; the court should rectify it if the interests of justice so dictate

On appeal from
Industrial Court
Cause No. 555 of 2010
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Banking Insurance & Finance Union v Harambee Co-operative Savings & Credit Society", Case Analysis (2015). Civil Application No. Nai 216 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/943/eng@2015-02-20

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