Lucy Wangari Kariuki v Kangunu Farmers Co-Operative Society Limited [2018] KECA 694 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a worker to appeal 14 months late because her union never told her the judgment, showing courts will excuse delay with a credible explanation.
What this practically means
#Executive summary
#Key legal issues
#Principles governing extension of time under Rule 4 of the Court of Appeal Rules
The power under Rule 4 is discretionary and unfettered; the applicant bears the onus of satisfying the court that the discretion should be exercised in their favour, and the court considers relevant factors including length and reason of delay, chances of success, and prejudice to the respondent.
The court adopted the classic Rule 4 jurisprudence from Fakir Mohamed v Joseph Mugambi, listing non-exhaustive factors: period of delay, reason for delay, chances of success, prejudice to the respondent, effect on public administration, importance of compliance with time limits, resources of parties and public importance. Applying these, it found the delay not inordinate, the explanation (union's failure to notify) credible, and prejudice minimal.
Whether the delay of about one year and two months was inordinate
A delay of one year and two months was held not to be inordinate, where the delay was occasioned by the applicant's union representative failing to inform her of the judgment outcome.
The applicant's former advocate on record was her union, KUCFAW, which neither filed a Notice of Appeal nor informed her of the judgment delivered in her absence. The court took the view that the failure of the union to relay the outcome explained the delay and that the period was not inordinate. The court also declined to gauge the prospects of success of the intended appeal.
Whether the court should assess the chances of success of the intended appeal at the extension stage
The court held that it is not its place to gauge the prospects of success (or lack thereof) in the intended appeal, as those will be determined at the appropriate time.
While chances of success is a relevant Rule 4 factor, the court declined to make a definitive assessment of the arguability of the appeal, reasoning that the appeal's merits would be determined at the hearing. Prejudice to the respondent was assessed as minimal since either outcome of the appeal would bring closure.
Legal principles established
#- Rule 4 confers a discretionary and unfettered power on the Court to extend time, and the onus is on the applicant to explain to the satisfaction of the court that he is entitled to the exercise of discretion in his favour, taking into account relevant factors such as the period and reason for delay, chances of success, and prejudice to the respondent.
Court orders
#- 1.Extension of time granted to file and serve the Notice of Appeal within 14 days from the date of the Ruling
- 2.Record of Appeal to be filed and served within 60 days of service of the Notice of Appeal
- 3.In default, the motion to stand dismissed
- 4.Costs to abide the outcome of the intended appeal
- On appeal from
- Employment and Labour Relations Court at Nyeri
- Cause No 145 of 2015
- Jurisdiction invoked
- Rules 4, 42 and 43 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucy Wangari Kariuki v Kangunu Farmers Co-Operative Society Limited [2018] KECA 694 (KLR)", Case Analysis (2018). Civil Application No NYR 35 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/694/eng@2018-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.