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Court of AppealDismissedCivil Application No. Nai 189 of 2015 (as derived from the motion; the judgment itself does not state an application number)· [2016] KECA 761 (KLR)

Daniel Waiganjo Githinji v Kenpipe Co-operative Savings & Credit Society Limited [2016] KECA 761 (KLR)

Court of Appeal of Kenya
26 February 2016
3,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a single-judge chambers decision of the Court of Appeal at Nairobi delivered by G. B. M. Kariuki, JA, on an application under rule 4 of the Court of Appeal Rules seeking extension of time so that a record of appeal lodged on 30 June 2015 could be deemed duly filed. The underlying dispute arises from a judgment of the Industrial Court (Maureen Onyango, J) of 30 September 2014 in Industrial Cause No. 1088 of 2011, in which the applicant, a former employee terminated in 2007, was awarded three months' salary in lieu of notice. A notice of appeal was filed and served timeously on 13 October 2014, but the record of appeal was lodged far outside the sixty-day period under rule 82(1), which expired around 13 December 2014. The applicant could not invoke the proviso to rule 82(1) because his advocates failed to serve the letter bespeaking proceedings on the respondent's advocates as required by rule 82(2). The certificate of delay showed the proceedings were ready on 4 December 2014, but charges were only paid on 10 February 2015, proceedings collected on 10 March 2015, and the record filed on 30 June 2015, with no explanation for any of these gaps. The court reviewed the established rule 4 jurisprudence - length and reason for delay, arguability, prejudice, and the interests of justice under section 3A and 3B of the Appellate Jurisdiction Act - and characterized the case as one of dilatoriness and indolence. It also noted that the record had not been filed by counsel properly on record. The application was dismissed with costs to the respondent. The decision below was not disturbed; the ruling concerns only the extension application.

Key legal issues

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01

Whether the inordinate, unexplained delay in paying for, collecting and compiling the proceedings justified an extension of time under rule 4

Holding

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.

Reasoning

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.

p. 3
02

Whether a record of appeal filed by advocates who were not properly on record could be deemed duly filed

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Dismissal of the applicant's notice of motion dated 6th July 2015

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 75
  • Court of Appeal Rulesrule 82(1) and proviso
  • Court of Appeal Rulesrule 82(2)
  • Appellate Jurisdiction Act, Cap 9section 3(2)
  • Appellate Jurisdiction Act, Cap 9section 3A
  • Appellate Jurisdiction Act, Cap 9section 3B
  • Constitution of KenyaArticle 48

Cases cited (7)

  • Ketterman v. Hansel
    [1988] 1 All ER 38
  • Mwangi v. Kenya Airways Ltd
    [2003] KLR 48
  • Peter Njuguna Njoroge v. Zipporah Wangui Njuguna
    Civil Application No. Nai 138 of 2013 (unreported)
  • Gatu V. Muriuki
    [1986] KLR 211
  • Wasike v. Khisa
    [2004] KLR 197
  • Gulam Hussein N. Cassamand and Another v. Shashikant Ramji
    Civil Application No. Nai 1 of 1981
  • Belinda Murai and 9 Others vs Amos Wainaina
    Civil Application No. Nai 9 of 1978 (unreported)
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

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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, "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.