Omariba Elijah Kemonde v Secretary, Teacher Service Commission [2017] KECA 149 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a teacher's bid to appeal out of time because he never explained his delay or showed the appeal had merit.
What this practically means
#Executive summary
#Key legal issues
#Competence of an untimed notice of appeal
Without an order extending time, a notice of appeal filed out of the 14-day period under rule 75 is not competent
The notice was lodged six days late and no extension had been sought or obtained. The court held that in the absence of an extension order there is no competent notice of appeal on which a record of appeal can be founded, so the applicant needed relief under rule 4.
Explanation for delay and arguability
An applicant under rule 4 must both explain the whole period of delay and demonstrate that the intended appeal is arguable; failure on either is fatal
The applicant gave no reason for the six-day late notice, no explanation for not compiling the record after proceedings were ready on 3rd April 2017, and made no averment on arguability. The court found no plausible reason and dismissed the application without needing to consider fees relief.
Effect of failure to copy letter bespeaking proceedings
Failure to copy the letter bespeaking proceedings to the opponent forfeits the proviso to rule 82(1) excluding time taken to prepare proceedings
The applicant's advocates did not copy the letter bespeaking proceedings to the respondent's advocates, so he could not benefit from the proviso to rule 82(1). However, this did not matter here because the proceedings were ready well before the 60 days expired.
Legal principles established
#- Even delays that are not inordinate must be explained if the object and purpose of the rules is not to be defeated
- A court will not shut out a litigant who acted with dispatch and shows diligence, especially where the delay was unavoidable
Court orders
#- 1.Dismissal of the application for extension of time and for waiver of fees for want of merit
- 2.Costs of the application awarded to the respondent
- On appeal from
- Employment and Labour Relations Court
- Nbi Cause No. 1783 of 2014
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omariba Elijah Kemonde v Secretary, Teacher Service Commission [2017] KECA 149 (KLR)", Case Analysis (2017). Notice of motion dated 12th May 2017 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/149/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.