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Court of AppealAllowedNotice of Motion dated 1st August 2018, arising from Application No. Nai 145 of 2011 (Ur 121/2018)

Millie G.A. Odhiambo & 3 others v Tonny Moses Odera [2018] KECA 49 (KLR)

Court of Appeal of Kenya
20 December 2018
992 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal let CRADLE file its appeal late, ruling that a client shouldn't be punished for its lawyer's procedural mistakes when the client stayed active.

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 (Kiage, JA) delivered at Nairobi on 20th December 2018 on a motion dated 1st August 2018 by trustees of CRADLE, The Children's Foundation seeking extension of time to file a notice of appeal against an award of the Employment and Labour Relations Court at Milimani (Rika, J.) dated 18th August 2016. The notice of appeal was filed on 14th May 2018, some 21 months after the award - a delay conceded as long and inordinate. An earlier omnibus motion had come before a full bench (Waki, Nambuye & Murgor, JJ.A) on 26th July 2018; the extension prayer was withdrawn forwant of single-Judge jurisdiction, and the applicant deposited the decretal sum of about Kshs. 900,000 in a joint interest-earning account, with a subsisting stay of execution. The Judge found the advocates had pursued mistaken remedies - unsuccessful stay and extension applications in the court below, the last of which took nearly a year to be dismissed - but were not indolent, keeping in motion though in the wrong direction. A year was deducted from the delay as attributable to the court below. The Judge declined to punish the litigant for the advocate's blunders, held that the ex-parte hearing (notice received after the event) engaged the constitutional right to be heard and was no trifling point, and found no real prejudice to the respondent given the deposit. Time was extended, the notice of appeal was deemed properly filed, and costs were awarded to be in the intended appeal. The ruling binds no lower court on the merits of the underlying award, which remains subject to the intended appeal.

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's delay of some 21 months in filing the notice of appeal has been satisfactorily explained
  2. 2.Whether the applicant should be punished for the blunders of its advocates where the applicant itself was not indolent
  3. 3.Whether there is an arguable appeal or a point that is not trifling or shadowy
  4. 4.Whether the respondent would suffer prejudice if time is extended, given the decretal sum has been deposited

Key legal issues

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01

Whether the delay of approximately 21 months in filing the notice of appeal was inordinate and satisfactorily explained

Holding

Although the delay was long and inordinate on its face, it was satisfactorily explained: notice of the ex-parte hearing was received after the event, the file could not be traced, unsuccessful applications were pursued in the court below, and a year was lost awaiting a ruling

Reasoning

The Judge accepted that the advocates pursued mistaken or misdirected remedies (backing wrong horses, climbing wrong trees) but concluded this evidenced want of thoroughness or strategy, not indolence. Because the last application in the lower court took nearly a year to be decided, that period was deducted from the delay as fault attributable to the court below. On that accounting, the delay was explained to the Judge's satisfaction.

p. 2
02

Whether the applicant should bear the consequences of its advocates' procedural missteps

Holding

The applicant should not be punished where the blunders were of the advocate's making and the applicant itself was not lazy or indifferent

Reasoning

The Court declined to visit the sins of the advocates on the litigant where the applicant had kept in motion throughout. Combined with the year lost awaiting the lower court's ruling, conscience did not permit punishing the applicant for the advocates' errors.

p. 2
03

Whether the intended appeal was arguable or merely trifling and shadowy

Holding

The intended appeal was not trifling or shadowy because the hearing proceeded ex-parte when notice arrived more than a week after the event, engaging the constitutional right to be heard

Reasoning

The applicant's uncontroverted averment was that the impugned award followed an ex-parte hearing triggered by late-received notice. Given the centrality of the right to be heard at the heart of the constitutional guarantee of fair trial, the intended appeal raised a substantial point and the applicant deserved its day in court.

p. 2
04

Whether the respondent would suffer prejudice if time were extended

Holding

No real prejudice would be suffered because the decretal sum of approximately Kshs. 900,000 had already been deposited in a joint interest-earning account pursuant to an earlier order

Reasoning

An earlier bench (Waki, Nambuye & Murgor, JJ.A) had accepted the applicant's offer to deposit the decretal sum, and a stay of execution was already subsisting pending appeal. With the decretal sum secured in a joint interest-earning account, the respondent was protected, tilting the discretion in favour of extension.

p. 2

Legal principles established

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  • A litigant should not in conscience be punished for delay where the blunders were of the advocate's making and the litigant itself was not indolent
  • Delay occasioned by the court below, such as time spent awaiting a ruling, is not attributable to the applicant and is deducted from the length of delay
  • An ex-parte hearing caused by late receipt of hearing notice engages the constitutional guarantee of a fair trial, so the intended appeal is not trifling or shadowy
  • The single Judge's discretion on extension of time is free and unfettered and is exercised to ensure the doing of justice
  • Deposit of the decretal sum in an interest-earning account neutralises prejudice to the respondent and supports extension of time

Court orders

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  1. 1.Extension of time for the filing of the notice of appeal granted
  2. 2.The applicant's notice of appeal dated 14th May 2018 deemed as properly filed
  3. 3.Costs shall be in the intended appeal

The bench

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

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court, Milimani
Jurisdiction invoked
Inherent discretion of the Court of Appeal under its Rules to extend time for filing a notice of appeal (application heard by a single Judge as required by the Court's Rules)

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.

The applicant’s notice of appeal dated 14th May 2018 is accordingly deemed as properly filed.
p. 2Final orders - notice of appeal deemed properly filed
In view of the fact that the decretal sum has already been deposited in a joint interest earning account, I do not think that the respondent stands to suffer any real prejudice were I to extend time, which I hereby do.
p. 2Final orders - extension of time granted and prejudice neutralised by deposit
Costs shall be in the intended appeal.
p. 2Final orders - costs
they were guilty of delay in getting to the proper destination but were certainly not indolent. They kept in motion, but in the wrong direction, and that may speak more to a want of thoroughness or lack of proper strategy but not of laziness or indifference.
p. 2Distinguishing mistaken procedural pursuit from indolence
Considering the centrality of the right to be heard, it, being at the very heart of the constitutional guarantee of fair trial, I cannot say that what the applicant intends to urge on appeal is some trifling, shadowy point.
p. 2Arguability anchored in the right to a fair hearing

Issues in the judgment

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minor

The respondent is never named in the judgment text; the parties field for the respondent is descriptive only

minor

The case number and neutral citation are not stated in the judgment; the number given derives from the earlier related application referenced in the text

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, "Millie G.A. Odhiambo & 3 others v Tonny Moses Odera [2018] KECA 49 (KLR)", Case Analysis (2018). Notice of Motion dated 1st August 2018, arising from Application No. Nai 145 of 2011 (Ur 121/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/49/eng@2018-12-20

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