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Court of AppealAllowedNot stated in the judgment· [2016] KECA 240 (KLR)

Joan Jelagat Biwott & 2 others v Regional Reach Limited & another [2016] KECA 240 (KLR)

Court of Appeal of Kenya
16 September 2016
DMD. Musinga
763 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 late appeals proceed because the lawyer, not the client, caused the delay.

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 Nairobi by Musinga, JA, granting an application for extension of time to file a notice of appeal out of time. The applicants, whose claim for damages for unlawful termination of employment was dismissed by the Industrial Court of Kenya on 16 July 2014 in Cause No. 1228 of 2010, were not informed of the judgment by their former advocates until 21 August 2014. Upon receiving a text message notification they acted promptly: they obtained the judgment, instructed new advocates, and filed and served a notice of appeal. The respondent, Federation of Kenya Employers, objected by replying affidavit that the application was made almost a year later without explanation, but the court found on the chronology that the delay was about one month against the fourteen-day window in rule 75(2) of the Court of Appeal Rules, and that it had been well explained. Applying the classic factors from Shah v Southern Credit Banking Corporation Ltd - length and reason for the delay, likelihood of success, and prejudice - and exercising its unfettered but judicial discretion, the court found the delay not inordinate, the draft memorandum of appeal not frivolous, and no great prejudice to the respondents. Time was extended, the notice of appeal deemed filed and served in time, the memorandum and record of appeal to be filed and served within thirty days, with each party bearing their own costs.

Key legal issues

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01

Factors governing extension of time to file a notice of appeal

Holding

The Court considers the length of the delay, the reason for it, the likelihood of success of the intended appeal, and prejudice to the respondents. A delay of about one month, attributable to the former advocate's failure to notify the clients of judgment, was not inordinate and was well explained.

Reasoning

Under rule 75(2) of the Court's Rules a notice of appeal should be filed within fourteen days of the judgment. Judgment was delivered on 16 July 2014 but the applicants were only informed on 21 August 2014, after which they acted with speed. The delay of about one month was thus not inordinate, and even if it were, it was explained. The draft memorandum was not frivolous and no great prejudice to the respondents was shown.

p. 2
02

Blame attributable to a former advocate's mistake

Holding

Applicants should not be punished for their former advocates' mistake where they themselves moved promptly upon learning of the judgment.

Reasoning

Counsel urged that the applicants should not be punished for their former advocates' mistake. The court accepted that once notified by text message on 21 August 2014, the applicants 'moved with speed and did the needful', applying for the judgment the next day, instructing new advocates on 1 September and filing the notice of appeal on 2 September 2014.

p. 2

Legal principles established

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  • In considering an application for extension of time, the Court exercises an unfettered discretion which must be exercised judicially, taking into account the length of and reason for the delay, the likelihood of success of the intended appeal, and the degree of prejudice to the respondents.

Court orders

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  1. 1.Extension of time granted to file the notice of appeal and the record of appeal out of time
  2. 2.The notice of appeal already filed and served deemed as having been filed and served in time
  3. 3.The applicants to file and serve the memorandum and record of appeal within thirty (30) days from the date of the ruling
  4. 4.Each party to bear their own costs of the application

Authorities

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Legislation

  • Court of Appeal RulesRule 75(2)

Cases cited (1)

  • SHAH v SOUTHERN CREDIT BANKING CORPORATION LTD
    [2008] KLR 173
On appeal from
Industrial Court of Kenya
Cause No. 1228 of 2010
Jurisdiction invoked
Rule 75(2) of the Court of Appeal Rules - discretion to extend time for filing a notice of appeal

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, "Joan Jelagat Biwott & 2 others v Regional Reach Limited & another [2016] KECA 240 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/240/eng@2016-09-16

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