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Court of AppealDismissedNotice of Motion dated 27th July 2017 (Court of Appeal application)· [2017] KECA 130 (KLR)

Attorney General v COL. (RTD) Richard Nchapi Leiyagu [2017] KECA 130 (KLR)

Court of Appeal of Kenya
8 December 2017
2,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to extend time for a delayed appeal because the government could not explain a two-year delay, so the original judgment stands.

What this practically means

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Executive summary

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The Attorney General, on behalf of the Chief of Kenya Defence Forces and the Ministry of Defence, moved the Court of Appeal under Article 164 of the Constitution and rules 4 and 47 of the Court's Rules for an extension of time to file and serve a notice of appeal and record of appeal against a judgment delivered on 10th June 2015 in an employment dispute with Col. (Rtd) Richard Nchapi Leiyagu. The applicant attributed the delay to State Counsel's failure to communicate the judgment, the unavailability of proceedings from the Registry, and the State Counsel's maternity leave. Murgor, JA apportioned the delay of two years and one month into three segments. Only the initial period was excused: to avoid penalizing the Defence Forces for the State Counsel's negligence, the court accepted they were unaware of the judgment until 16th May 2016. The intervening ten-month and final four-month periods were unexplained; no Notice of Appeal or request for proceedings was made following instructions, and the claim that the Registry failed to supply proceedings was found baseless and lacking candor. There was no proof of maternity leave, and the Defence Forces showed no interest in pursuing the appeal. The court applied Leo Sila Mutiso and Trade Bank Ltd, holding the discretion under rule 4 could be exercised only upon reason, not sympathy. The intended appeal's chances of success were uncertain, and the respondent would suffer extreme prejudice, having already obtained an order of mandamus compelling payment of the decretal sum. The application was dismissed with costs.

Key legal issues

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01

Whether the delay of two years and one month in filing the notice of appeal was adequately explained

Holding

Only the initial period of delay (up to 16th May 2016) was excused; the intervening 10-month and final 4-month periods were unexplained, rendering the delay inordinate

Reasoning

The court apportioned the delay into three segments. It accepted the Defence Forces were unaware of the judgment until 16th May 2016 due to State Counsel's negligence. However, no material explained the delay from instruction to file an appeal on 24th May 2016 until the Notice of Appeal on 24th March 2017, nor the subsequent four months. The claim that proceedings were never supplied was baseless as no request was ever made.

p. 4
02

Whether the State Counsel's mistake should be visited on the Defence Forces

Holding

The court was prepared to absolve the Defence Forces for the initial period, attributing that delay to the applicant's State Counsel

Reasoning

Although the Defence Forces should not be penalized for the State Counsel's inadvertence in the initial period, the court found nothing showing the Defence Forces took any interest in, or assiduously pursued, the filing of the intended appeal during the intervening and final periods. Both parties were therefore guilty of laches.

p. 4
03

Whether the intended appeal had chances of success and whether the respondent would suffer prejudice

Holding

Neither factor favoured the applicant: success was uncertain and the respondent would suffer extreme prejudice given the mandamus proceedings already obtained

Reasoning

Considering the draft Memorandum of Appeal against the judgment, the court was not persuaded there was any certainty of success. The respondent would further be prejudiced by the inordinate, unexplained delay and by the significant effort expended in obtaining orders of mandamus compelling payment of the decretal sums, interest and costs.

p. 4

Legal principles established

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  • Rule 4 confers an unfettered discretion on the Court to extend time, to be exercised judiciously having regard to the length of the delay, the reason for the delay, the chances of success of the appeal, and prejudice to the respondent
  • A long delay or inaction must be supported by material explanation; the discretion can only be exercised upon reason, not sympathy

Court orders

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  1. 1.The Notice of Motion dated 27th July 2017 be and is hereby dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 164
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 47

Cases cited (4)

  • Edith Gichugu vs Stephene Njagi Thiothi
    [2014] eKLR
  • Macwatt Estates Limited vs Mbwanji Limted
    [2001] eKLR
  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997
  • Trade Bank Ltd (In liquidation) vs L.Z. Engineering Construction Ltd & Another
    Civil Appl. No. NAI. 282/98
On appeal from
Employment and Labour Relations Court (trial court)
Jurisdiction invoked
Article 164 of the Constitution and rules 4 and 47 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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Cite this brief

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Cite this brief

Caselaw, "Attorney General v COL. (RTD) Richard Nchapi Leiyagu [2017] KECA 130 (KLR)", Case Analysis (2017). Notice of Motion dated 27th July 2017 (Court of Appeal application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/130/eng@2017-12-08

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