Daniel Waiganjo Githinji v Kenpipe Co-operative Savings & Credit Society Limited [2016] KECA 761 (KLR)
The bottom line
#The Court of Appeal refused to excuse a five-month unexplained delay in filing an appeal record, ending a former employee's appeal against Kenya Breweries.
What this practically means
#Executive summary
#Key legal issues
#Whether the inordinate, unexplained delay in paying for, collecting and compiling the proceedings justified an extension of time under rule 4
The extension was refused because the applicant failed to explain the delay in paying court charges (until 10 February 2015), collecting proceedings (10 March 2015) and lodging the record (30 June 2015), and could not invoke the proviso to rule 82(1) for want of service of the bespeaking letter.
The sixty-day period under rule 82(1) expired on 13 December 2014. Because the applicant's advocates never served the letter requesting proceedings on the respondent's advocates, the proviso excluding time taken to prepare proceedings was unavailable. The certificate of delay showed proceedings were ready by 4 December 2014, yet payment and collection took months, and the record was lodged three months and twenty days after collection, with no explanation. The court characterized this as indolence and declined to exercise its discretion.
Whether a record of appeal filed by advocates who were not properly on record could be deemed duly filed
The court noted the advocates on record (Muthoni C. M. & Co.) had not properly placed themselves on record to replace C. K. Wari & Associates, so the memorandum and record of appeal were not filed by counsel on record; the notice of change by Njenga Mungai & Associates should have replaced C. K. Wari & Associates.
Counsel for the respondent had argued that Muthoni G. M. & Co. never placed themselves on record and that the notice of change by Njenga Mungai & Associates was misplaced. The court agreed that the record had not been filed by properly instructed counsel on record, but dismissed the application primarily on the ground of unexplained delay, treating the representation defect as an additional reason the application lacked merit.
Legal principles established
#- In considering whether to extend time under rule 4, the court considers whether the delay was inordinate or satisfactorily explained, whether there are chances of the appeal succeeding, the degree of prejudice to the respondent, and each case on its own merits.
- An appellant who fails to serve a copy of the letter requesting proceedings on the respondent cannot rely on the proviso to rule 82(1) to exclude the time taken by the court in preparing proceedings from the sixty-day period for lodging an appeal.
- The rule 4 discretion is unfettered but must be exercised judicially; only unreasonable, culpable delay disentitles an applicant to an extension.
Court orders
#- 1.Dismissal of the applicant's notice of motion dated 6th July 2015
- On appeal from
- Industrial Court (Employment and Labour Relations Court)
- Industrial Cause No. 1088 of 2011
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules; sections 3(2), 3A and 3B of the Appellate Jurisdiction Act (Cap 9); single judge sitting in chambers
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Waiganjo Githinji v Kenpipe Co-operative Savings & Credit Society Limited [2016] KECA 761 (KLR)", Case Analysis (2016). Civil Application No. Nai 189 of 2015 (as derived from the motion; the judgment itself does not state an application number). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/761/eng@2016-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.