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Court of AppealAllowedCivil Application No. Nai. of 2017 (Notice of Motion dated 11th April 2017)· [2017] KECA 296 (KLR)

Tribe Hotel Limited v Angela Wokabi Muoki [2017] KECA 296 (KLR)

Court of Appeal
29 September 2017
1,658 words in judgment
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The bottom line

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Kenya's Court of Appeal gave Tribe Hotel more time to appeal an employment judgment, ruling a client shouldn't suffer for a lawyer's mistake.

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 delivered by W. Karanja, JA, on an application under Rule 4 of the Court of Appeal Rules by Tribe Hotel Limited seeking an extension of time to lodge a Notice of Appeal against a judgment of M. Mbaru J of the Industrial Court delivered on 29th September 2016 in Employment Cause No. 1712 of 2014, in which Angela Wokabi Muoki was awarded most of her claimed reliefs, including Kshs 100,000 imposed under section 51(1) of the Employment Act and the maximum 12 months' compensation for wrongful dismissal plus three months' salary in lieu of notice. The Notice of Appeal was filed about 20 days late, which the applicant attributed to the mistake of its previous advocates. The respondent opposed, citing a six-month delay, a dismissed review application, lack of arguability and prejudice. Applying the established Rule 4 criteria from Mwangi v Kenya Airways Ltd and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the Court found the delay not inordinate, the reason satisfactory, the intended appeal arguable on substantial points of law (the nature of the section 51(1) award and whether 12 months' compensation includes notice pay), and no real prejudice to the respondent who knew an appeal was pending. The application was allowed; a fresh Notice of Appeal was to be filed and served within 7 days, with costs in the intended appeal.

Key legal issues

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01

Delay caused by mistake of previous counsel

Holding

A 20-day delay in filing the Notice of Appeal, attributable to the mistake of previous counsel who had been instructed to file it, is not inordinate and the client should not be punished for it, particularly where proceedings were requested promptly.

Reasoning

The Court found that the letter bespeaking proceedings was sent within 8 days of judgment and copied to the respondent's counsel, so the respondent knew an appeal was pending. The delay of about 20 days was caused by counsel's mistake, and current counsel pursued the matter promptly. The Court held the reason satisfactory and declined to punish the client for the 20-day delay.

p. 3
02

Period between judgment and the extension application - pursuit of review

Holding

Delay between judgment and the present application is excused where the applicant was pursuing a review application whose outcome had to await delivery of the ruling; the present application was filed within two weeks of the review ruling.

Reasoning

The respondent alleged a six-month unexplained delay. The Court distinguished between the 20-day delay in filing the Notice of Appeal and the time consumed by the review application. Since the applicant could not have known the fate of the review before the ruling and filed this application within two weeks of it, that period could not count as inordinate delay attributable to the applicant.

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03

Arguability of intended appeal

Holding

The intended appeal raises substantial points of law concerning interpretation of section 51(1) of the Employment Act and whether the 12 months' maximum compensation includes salary in lieu of notice, warranting full consideration on appeal.

Reasoning

The Court did not determine the merits but found the questions - whether a fine under section 51(1) can be converted to exemplary damages payable to a claimant, and whether the maximum 12 months' compensation includes notice pay - to be substantial points of law deserving the Court of Appeal's full consideration, supporting extension of time.

p. 3

Legal principles established

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  • The Court's discretion to extend time under Rule 4 is unfettered but must be exercised judicially, guided by the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent - a non-exhaustive list.

Court orders

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  1. 1.Extension of time granted to lodge the Notice of Appeal
  2. 2.A fresh Notice of Appeal to be filed and served on the respondent's counsel within 7 days from the date of the Ruling
  3. 3.Costs of the application to be in the intended appeal

Authorities

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Legislation

  • Employment ActSection 51(1)
  • Court of Appeal RulesRule 4

Cases cited (2)

  • Mwangi v Kenya Airways Limited
    [2003] KLR 486
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997 (unreported)
On appeal from
Industrial Court of Kenya (Employment and Labour Relations Court), Nairobi
Employment Cause No. 1712 of 2014
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent discretionary power of a single Judge to extend time)

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, "Tribe Hotel Limited v Angela Wokabi Muoki [2017] KECA 296 (KLR)", Case Analysis (2017). Civil Application No. Nai. of 2017 (Notice of Motion dated 11th April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/296/eng@2017-09-29

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