Fred V Mwara v Unga Limited [2016] KECA 710 (KLR)
The bottom line
#The Court of Appeal refused to forgive a 19-month delay in filing an appeal because the applicant never followed up on his own case.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the notice of appeal and record of appeal was inordinate and excusable
The delay of about 19 months was inordinate and no reasonable explanation was advanced; the client bore a duty to follow up with his advocates.
The notice of appeal was to be filed within 14 days under Rule 75(2), but instructions were given 22 days after the award and the notice was filed on 6th May 2013 without explanation. The applicant blamed an associate who left the firm abruptly, but he did not explain his own failure to follow up the matter, and the application itself was brought some 19 months late. Following Bi-Mach Engineers, advocate inaction is not an excusable mistake and the client has a remedy against the advocate.
Whether the intended appeal was arguable
No grounds of appeal were placed before the court to enable it assess arguability, so this factor did not favour the applicant.
The respondent complained that the applicant had not set out the grounds he intended to rely on. On considering the application, the court found that no grounds had been presented on the arguability of the intended appeal, meaning the third Mutiso factor (chances of success) could not be satisfied in the applicant's favour.
Whether the discretion to extend time should be exercised in the applicant's favour
The discretion is unfettered but must be judicially exercised; here it was declined because of the inordinate unexplained delay and prejudice to the respondent.
Applying the settled Mutiso principles, the court found the delay long and unexplained, the arguability of the appeal not demonstrated, and prejudice to the respondent given that the matter had been determined long before and litigation must come to an end. The discretion was therefore not exercised in the applicant's favour and the application was dismissed with costs.
Legal principles established
#- In deciding whether to grant an extension of time, the court considers the length of delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- A client has a duty to follow up on his matter with his advocates; blaming an advocate's inaction is not an excusable mistake, and unexplained delay leaves no basis for exercising the discretion to extend time.
Court orders
#- 1.The application for extension of time is dismissed
- 2.Costs of the application to the respondent
- On appeal from
- Industrial Court (now Employment and Labour Relations Court)
- Not stated in judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time to file notice of appeal and record of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fred V Mwara v Unga Limited [2016] KECA 710 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/710/eng@2016-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.