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Court of AppealDismissedCivil Application (Nai.) not stated in judgment

Attorney General v Sylvanus Otieno Odiaga [2017] KECA 162 (KLR)

Court of Appeal of Kenya
17 November 2017
1,800 words in judgment
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The bottom line

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Kenya's Court of Appeal refused the Attorney General more time to appeal because a nearly three-year delay was unexplained and dishonest.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi (M'Inoti, JA) delivered on 17th November 2017, disposing of a notice of motion by the Attorney General, acting for the Ministry of State for Defence, seeking extension of time to file a notice of appeal against a judgment of the Employment and Labour Relations Court (Ndolo, J.) of 8th July 2014. That judgment had awarded the respondent, a former commissioned officer in the Kenya Army, Kshs 5,000,000 in damages for the unlawful termination of his commission following a court martial. Under rule 75(2) of the Court of Appeal Rules the applicant had 14 days to lodge a notice of appeal; it filed one nearly three years later, in February 2017, attributing the delay to the resignation of the counsel handling the matter. The court held that although an applicant is no longer required to show 'sufficient reason', the discretion to extend time, even where unfettered, must be exercised judiciously and on the basis of reason. Examining the record, the judge found the applicant had been deliberately less than candid: it declined to name the allegedly resigning advocate, and the record showed it participated in the taxation of costs, was served with the certificate of order against the Government in December 2014, and with mandamus proceedings in March 2015. The delay was held inordinate and unexplained. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted an extension of time to file a notice of appeal out of the 14-day period prescribed by rule 75(2) of the Court of Appeal Rules
  2. 2.Whether the applicant's explanation for the delay was candid and sufficient to justify exercise of discretion
  3. 3.Whether the notice of appeal filed out of time without leave was competent

Key legal issues

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01

Exercise of the discretionary power to extend time

Holding

The discretion, even where unfettered, must be exercised judiciously and on the basis of reason, not capriciously or arbitrarily.

Reasoning

The court accepted the established principles: extension of time is discretionary; the applicant bears the duty of explaining non-compliance; the length and reasons for delay and prejudice to the respondent are key considerations. Where the reason given is a contrived or dishonest account, discretion cannot be exercised in the applicant's favour.

p. 2
02

Candour and credibility of the explanation for delay

Holding

The applicant was deliberately less than candid: it refused to name or date the allegedly resigning advocate, and the record showed it knew of the judgment well before February 2017.

Reasoning

The affidavit was sworn by the Principal Secretary on undisclosed information; the applicant participated in the taxation of costs, was served with the certificate of order against the Government in December 2014, and with the mandamus notice in March 2015. The claim of ignorance of the judgment until February 2017 was therefore disingenuous.

p. 3
03

Competence of the out-of-time notice of appeal

Holding

A notice of appeal filed out of time without leave is null and void (per Salat v IEBC, relied on by the respondent).

Reasoning

The respondent argued, invoking the Supreme Court's ruling in Salat, that the notice of appeal filed on 1st March 2017 without leave was a nullity. The court did not need to resolve this as the application failed on delay and candour.

p. 2

Legal principles established

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  • Even an unfettered discretion to extend time must be exercised judiciously, on reason rather than caprice, and a party who is not forthright and truthful does not deserve the exercise of discretion in its favour
  • Although an applicant for extension of time no longer needs to show 'sufficient reason', the applicant must still place before the court real, non-fanciful material on which discretion can be exercised

Court orders

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  1. 1.The application for extension of time to file the notice of appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Single judge of the Court of Appeal, as a single justice, dismissed the applicant's motion for extension of time to file a notice of appeal against an ELRC judgment, holding that the applicant's near three-year delay was inordinate and deliberately unexplained.

This application is utterly bereft of merit and the same is dismissed with costs to the respondent.p. 3
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
Article 159 of the Constitution and rule 4 of the Court of Appeal Rules (extension of time under rule 4; notice of appeal governed by rule 75(2))

Relief refused

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Extension of time to file a notice of appeal against the ELRC judgment of 8th July 2014

The delay of close to three years was inordinate and unexplained; the applicant was less than candid about knowledge of the judgment and the alleged resignation of its counsel

p. 3

Costs

Application dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This application is utterly bereft of merit and the same is dismissed with costs to the respondent.
p. 3Disposition - dismissal of the extension of time application
A party who is not forthright and truthful does not deserve exercise of discretion, however unfettered, in his favour.
p. 3Candour as a condition of discretionary relief
The burden is on the applicant to explain why he did not comply with the rule and why he has taken up to three years to apply for extension of time to file the notice of appeal
p. 1Burden of proof on extension-of-time applicants
I find that the applicant has not explained the delay of close to three years, which I find to be inordinate.
p. 3Inordinate, unexplained delay

Issues in the judgment

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minor

The judgment does not state its own case number for this application

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 Sylvanus Otieno Odiaga [2017] KECA 162 (KLR)", Case Analysis (2017). Civil Application (Nai.) not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/162/eng@2017-11-17

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