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Court of AppealDismissedNotice of Motion dated 18th November 2015 (Court of Appeal)· [2016] KECA 770 (KLR)

Hilda Kaari Mwendwa v Zakayo M. Magara & 2 others [2016] KECA 770 (KLR)

Court of Appeal of Kenya
22 February 2016
Martha Karambu KoomeMARTHA K. KOOME
2,199 words in judgment
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The bottom line

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The Court of Appeal dismissed an employee's bid to appeal late against KCB, ruling unexplained delays and missing draft grounds killed her application.

What this practically means

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Executive summary

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This was a single-Judge application before the Court of Appeal at Nairobi in which Hilda Kaari Mwendwa, an employee whose services were terminated after she stayed away from a transferred duty station, sought extension of time to apply for certified proceedings and judgment of the Employment and Labour Relations Court and to lodge a Notice of Appeal out of time following a judgment delivered on 27th August 2015 by Nduma Nderi J. on behalf of Maureen Onyango J. The applicant claimed she was unaware of the delivery of the judgment until served with a copy towards the end of September 2015. The respondents countered that notices of delivery of judgment had been served on both counsel and that counsel's letter of 28th August 2015 requesting a copy of the judgment showed awareness of the decision. Koome JA held that Rule 4 of the Court of Appeal Rules did not apply to the first prayer, since the Court extends only time limited by its own Rules or by a decision of a Superior Court, and no such decision existed. On the Notice of Appeal, the court found the delay unexplained: counsel's assertion of late awareness was factually incorrect given the 28th August 2015 letter, and the application filed on 18th November 2015 was almost six weeks late without cogent explanation. Applying Wasike v Swala, Rael Munyaka, Geoffrey Makana Asanyo and African Airline International Ltd, the Judge held extension of time is an equitable remedy for a deserving party. In the absence of a draft memorandum of appeal, the intended appeal was not shown to be arguable. The motion dated 18th November 2015 was dismissed with costs to the respondents.

Key legal issues

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01

Scope of Rule 4 extension-of-time power

Holding

Rule 4 applies only to time limited by the Court of Appeal Rules or by the decision of a Superior Court; it does not extend time for requesting proceedings where the superior court made no such order.

Reasoning

The court reasoned that extension of time under Rule 4 operates only on time limits imposed by the Court of Appeal Rules or by a decision of a Superior Court. Since the Employment and Labour Relations Court had made no decision on when the applicant should seek proceedings, there was no limit capable of extension for the first prayer.

p. 3
02

Whether sufficient reasons justified late filing of the Notice of Appeal

Holding

No sufficient reason was shown; counsel's claim of ignorance of the judgment was contradicted by their 28th August 2015 letter and by service of notice of delivery of judgment.

Reasoning

The record showed a notice dated 13th August 2015 served on both counsel, and counsel wrote to the Deputy Registrar on 28th August 2015 requesting a copy of the judgment, demonstrating awareness. The assertion that they learned of the judgment only in late September 2015 was factually incorrect. The application filed on 18th November 2015 was almost six weeks late with no cogent explanation.

p. 4
03

Merits/arguability of the intended appeal

Holding

The single Judge, exercising caution, was not persuaded the intended appeal was arguable; no draft memorandum of appeal was provided.

Reasoning

The applicant did not avail a draft memorandum of appeal to enable assessment of arguability. Guided by precedent, the Judge held that while a single Judge may consider whether material exists that may be judicially considered, a final pronouncement that an appeal is unmeritorious is for the full bench. On the material, the Judge was not persuaded the appeal was arguable.

p. 4

Legal principles established

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  • A single Judge of the Court of Appeal may consider the merits of an intended appeal when exercising discretion under Rule 4, but cannot pronounce with finality that the intended appeal lacks merit - that remains the province of the full court.
  • Every delay in filing an appeal must be explained by the party in default.

Court orders

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  1. 1.The notice of motion dated 18th November, 2015 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A, 3B
  • Court of Appeal RulesRules 4, 42, 75

Cases cited (4)

  • Wasike v Swala
    1984 KLR 591
  • Rael Munyaka & 6 Others v Waitaluk Land Disputes Tribunal & 3 others
    {2007} eKLR
  • Geoffrey Makana Asanyo v National Bank of Kenya Ltd
    Civil Application No. NAI. 132/99 (UR)
  • AFRICAN AIRLINE INTERNATIONAL LTD. V EASTERN SOUTHERN AFRICA TRADE & DEVELOPMENT BANK (PTA BANK)
    2003 KLR 140
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 42 & 75 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Hilda Kaari Mwendwa v Zakayo M. Magara & 2 others [2016] KECA 770 (KLR)", Case Analysis (2016). Notice of Motion dated 18th November 2015 (Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/770/eng@2016-02-22

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