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Court of AppealDismissedNotice of motion dated 3rd February, 2017 (Civil Application)· [2018] KECA 508 (KLR)

Paul Mzungu Sumba v Housing Finance Company of Kenya [2018] KECA 508 (KLR)

Court of Appeal of Kenya
8 June 2018
SKS. ole Kantai
1,595 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time for filing an appeal because the delay was long, unexplained, and the appeal had no real chance of success.

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 Kantai, JA on 8th June 2018 on a notice of motion dated 3rd February 2017 in which Paul Mzungu Sumba sought leave and enlargement of time to file a memorandum of appeal out of time against a judgment of the Employment and Labour Relations Court (Abuotha, J.) delivered on 28th October 2016. The respondent, Housing Finance Company of Kenya, opposed, arguing that the delay was unexplained, that litigation must end, and that the intended appeal had no chance of success. The judge applied the well-established Fakir Mohammed factors for extension of time under rule 4 of the Court of Appeal Rules, together with the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act as explained in City Chemist (NBI) v Oriental Commercial Bank. The court held that the applicant's explanation - Christmas holidays, non-receipt of instructions and payment of school fees in January 2017 - was unreasonable: counsel learned of the judgment on 9th December 2016, had nearly two weeks before the statutory Christmas holiday period (22nd December to 13th January), and took no step until the motion was filed on 6th March 2017. The delay was therefore inordinate and unexplained. The court further found no chance of success in the intended appeal, noting from the judgment below that the applicant had resigned from the respondent's employment on 11th March 2008 and the resignation was accepted. The motion was accordingly dismissed with costs to the respondent. No decision of a lower court was disturbed; the ruling binds no issue beyond the discretion exercised, though it restates the binding extension-of-time principles for lower courts.

Key legal issues

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01

Reasonable explanation for delay

Holding

The explanation of Christmas holidays, school fees and delayed instructions did not constitute a reasonable explanation; the delay from 9th December 2016 to 6th March 2017 was inordinate and unexplained.

Reasoning

The applicant's advocate learned of the judgment on 9th December 2016 but took no step before the Christmas holiday period (22nd December to 13th January, per the Civil Procedure Act), and no step after resumption until 6th March 2017. No dates were given for closure, resumption or receipt of instructions. The court therefore found the delay unexplained and inordinate, a decisive factor against extension of time.

p. 2
02

Chances of the intended appeal succeeding

Holding

The court found no chance of success because the applicant had resigned from the respondent's employment on 11th March 2008, as recorded in the lower court's judgment.

Reasoning

The court perused the judgment of Abuotha, J. and noted that the applicant actually resigned by letter on 11th March 2008 and the resignation was accepted. This undermined the intended appeal's prospects, one of the Fakir Mohammed factors, and weighed firmly against granting enlargement of time.

p. 3

Legal principles established

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  • In exercising discretion to extend time under rule 4 of the Court of Appeal Rules, the court considers relevant non-exhaustive factors including the period and reason for delay, chances of the appeal succeeding, and prejudice to the respondent.
  • The overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act enriches but does not uproot established principles and precedent governing extension of time.

Court orders

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  1. 1.The notice of motion dated 3rd February, 2017 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Civil Procedure ActChristmas holiday period

Cases cited (7)

  • Fakir Mohammed v Joseph Mugambi and 2 Others
    Civil Application No. 332 of 2014 (ur)
  • Wachiuri Wahome v Festus Gatheru Wahome and 6 Others
    [2016] eKLR
  • Mutiso v Mwangi
    Civil Application No. NAI 255 of 1997 (UR)
  • Mwangi v Kenya Airways Limited
    [2003] KLR 486
  • Major Joseph Mwereri Igweta v Murika M'Ithare and Attorney-General
    Civil Application No. NAI 8 of 2000 (UR)
  • Murai v Wainaina (No. 4)
    1982 KLR 38
  • City Chemist (NBI) and Another v Oriental Commercial Bank Limited
    Civil Application No. NAI 302 of 2008 (UR) 199/2008
On appeal from
Employment and Labour Relations Court
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act

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, "Paul Mzungu Sumba v Housing Finance Company of Kenya [2018] KECA 508 (KLR)", Case Analysis (2018). Notice of motion dated 3rd February, 2017 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/508/eng@2018-06-08

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