Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedApplication dated 19th September 2018 (Civil Appeal, extension-of-time motion)· [2019] KECA 297 (KLR)

Kenya Tourism Development Corporation v Minister for Tourism & Wildlife & another [2019] KECA 297 (KLR)

Court of Appeal of Kenya
11 October 2019
1,355 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal gave KTDC 14 more days to file its appeal record, ruling that a procedural mistake shouldn't kill a dispute over a Kshs 12.9 million award.

What this practically means

#

Executive summary

#
This is a single-judge (Rule 4) ruling of the Court of Appeal at Nairobi, delivered by F. Sicha, JA, on an application by Kenya Tourism Development Corporation (KTDC) seeking an extension of time to file its record of appeal against a judgment of Mbaru, J dated 7th December 2017, which found in favour of Mutua Patrick Nzoka for unlawful termination and awarded damages of Kshs. 12,960,000/= plus unpaid salaries and allowances. KTDC filed its notice of appeal and letter bespeaking proceedings within the 14-day period, but failed to invoke the proviso to Rule 82(1) by lodging the appeal using the certificate of delay; instead, it filed the present application before time had fully expired. The respondent opposed, arguing abuse of process, unexplained delay after proceedings were ready, and the absence of a draft memorandum of appeal. Applying the factors in Karny Zahrya and Athuman Nusura Juma, the court held that the chronology was undisputed, the delay was a mistake that should not defeat the appeal, and that failure to annex a draft memorandum was not fatal. The application was allowed, with leave granted to file the record of appeal within 14 days, and each party ordered to bear its own costs. This is an interlocutory discretionary ruling, not a final appellate decision on the merits.

Key legal issues

#
01

Whether the delay in filing the record of appeal should be excused and time enlarged under Rule 4

Holding

Yes. The applicant filed its notice of appeal and bespeaking letter within time, obtained a certificate of delay, and filed the application even before time had fully run out; the delay was occasioned by a mistake in availing itself of the proviso to Rule 82(1).

Reasoning

The chronology was undisputed: notice of appeal and letter bespeaking proceedings were filed on 14th December 2017, within 14 days of the 7th December 2017 judgment. Proceedings were not ready until 16th August 2018 and the certificate of delay issued on 29th August 2018. The applicant's failure to invoke the proviso to Rule 82(1) caused the delay, but the discretion under Rule 4 should be exercised to do justice, and no prejudice was shown by the respondent.

p. 3
02

Whether failure to attach a draft memorandum of appeal defeats the application

Holding

No. It is one consideration only and not fatal where the court has discretion to do justice.

Reasoning

The respondent argued, and the court accepted, that no draft memorandum of appeal was annexed. However, the court held that among the Rule 4 considerations, the arguability of the intended appeal is prefixed by the word 'possibly' and is not determined definitively by a single judge; absence of a draft memorandum is but one of the considerations.

p. 3

Legal principles established

#
  • The grant of an extension of time under Rule 4 is discretionary, and the court weighs the length of and reasons for the delay, prejudice to the parties, the conduct of the parties, competing interests of the parties, public interest and the possible merits of the intended appeal.
  • A single judge must not determine definitively the merits of an intended appeal when considering an extension of time; the merits are for the full Court.
  • Failure to annex a draft memorandum of appeal to an extension-of-time application is not fatal where the rules give the court discretion to do justice.

Court orders

#
  1. 1.The applicant is granted leave to file the record of appeal within 14 days from the date of the ruling
  2. 2.Each party shall bear his/its own costs

Authorities

#

Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75(2)
  • Court of Appeal RulesRule 82(1)

Cases cited (2)

  • Karny Zahrya & Another vs. Shalom Levi
    CA No. 80 of 2018
  • Athuman Nusura Juma vs. Afwa Mohamed Ramadhan
    CA No. 227 of 2015
On appeal from
Employment and Labour Relations Court (High Court, per Mbaru, J)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent discretion to enlarge time)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Tourism Development Corporation v Minister for Tourism & Wildlife & another [2019] KECA 297 (KLR)", Case Analysis (2019). Application dated 19th September 2018 (Civil Appeal, extension-of-time motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/297/eng@2019-10-11

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