Judicial Service Commission v Obaga (Civil Application 34 of 2018) [2018] KECA 318 (KLR)
The bottom line
#Kenya's Court of Appeal allowed the Judicial Service Commission to appeal late because the lower court delivered judgment without telling the parties.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the notice of appeal was satisfactorily explained
Yes - the judgment was delivered without notice and in the absence of the parties, which was highly irregular; the applicant filed its notice within 14 days of learning of the judgment, providing a plausible explanation.
The court accepted as common ground that the ELRC judgment of 2nd November 2017 was delivered without notice and in the absence of the parties and their advocates, which it characterized as highly irregular. Since the scheduled judgment date fell on a public holiday, notice ought to have been issued. The applicant learned of the judgment on 9th January 2018 upon being served with a bill of costs and filed its notice on 22nd January 2018, within 14 days of that knowledge. Time therefore ran while the applicant was unaware of the judgment, excusing the delay.
Whether the applicant demonstrated an arguable appeal
Yes - the draft memorandum of appeal raised arguable grounds, particularly on the propriety of the award of Kshs.200,000 made to the respondent.
In applying the established rule 4 principles, the court examined the seven grounds in the draft memorandum of appeal and found them arguable, singling out the challenge to the award of Kshs.200,000. Combined with the adequate explanation for the delay and absence of demonstrated prejudice, this satisfied the interest of justice threshold for exercising discretion in the applicant's favour.
Legal principles established
#- The discretion to extend time under rule 4 must be exercised judicially, having regard to the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- Where a judgment date falls on a public holiday, appropriate notice of delivery of judgment ought to be sent to the parties; delivering judgment without notice and in the absence of the parties is highly irregular and justifies extension of time.
Court orders
#- 1.Time enlarged for filing of the notice of appeal (the applicant's motion allowed)
- 2.The notice of appeal dated 13th January 2018 and filed on 22nd January 2018 deemed as duly filed and served
- 3.Costs of the motion to be in the appeal
- On appeal from
- Employment and Labour Relations Court
- Not stated
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (inherent jurisdiction to extend time for filing a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commission v Obaga (Civil Application 34 of 2018) [2018] KECA 318 (KLR)", Case Analysis (2018). Civil Application 34 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/318/eng@2018-09-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.