Mabel Kibore v National Oil Corporation of Kenya Limited [2019] KECA 411 (KLR)
The bottom line
#Kenya's Court of Appeal struck out National Oil's appeal because it missed the 60-day filing deadline, meaning the original employment ruling can now be enforced.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent served the applicant or her counsel with a copy of the letter requesting certified proceedings, so as to benefit from the proviso to rule 82(1) excluding preparation time
- 2.Whether the respondent had taken the essential steps towards instituting its appeal within the stipulated 60 days under rule 82(1)
- 3.Whether the application to strike out was incompetent for being brought outside the 30-day period stipulated in rule 84
Key legal issues
#Service of the request for proceedings as a condition for exclusion of time under the proviso to rule 82(1)
The respondent failed to demonstrate service of its letter requesting certified proceedings on the applicant's counsel, and therefore cannot benefit from the proviso to rule 82(1) excluding preparation time.
The letter requesting proceedings bore no stamp of the applicant's counsel, was not copied to them, and no return of service or affidavit particulars showed who served or received it. The court treated this as a misstep in the filing of the appeal with the direct consequence that the preparation period cannot be excluded from the computation of the 60 days for lodging the record of appeal.
Effect of failure to institute an appeal within 60 days - rule 83 deemed withdrawal
Where an appeal is not instituted within the appointed time, the notice of appeal is deemed withdrawn under rule 83, and the court may strike it out notwithstanding the 30-day limitation in rule 84.
The court adopted the explanation of rule 83 in Mae Properties Limited v Joseph Kibe, that a notice of appeal dies a natural death after 60 days unless the appeal is lodged or time extended. Since the respondent could not benefit from the proviso to rule 82(1) and had not lodged its record of appeal by about 8th January 2018, the notice of appeal was already deemed withdrawn and rule 84's 30-day limitation could not save it.
Legal principles established
#- A party seeking to benefit from the proviso to rule 82(1) (exclusion of time for preparation of proceedings) must demonstrate service of the request for proceedings on the opposite party; absent proof of service, no exclusion applies.
- A notice of appeal lapses if the appeal is not instituted within 60 days (or the extended period under the proviso to rule 82(1)), and is deemed withdrawn under rule 83; the court may then strike it out on its own motion or on application.
Court orders
#- 1.The Notice of Appeal dated 8th November 2017 is struck out with costs
- 2.The stay of execution orders of this Court issued on 23rd February 2018 are vacated
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court
- ELRC No. 1993 of 2017
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal under rules 42(1), 75, 82(1) and (2), 83 and 84 of the Court of Appeal Rules (application to strike out a Notice of Appeal)
Relief refused
#Respondent's objection that the application was incompetent under rule 84 for being filed beyond 30 days of service of the Notice of Appeal
Where a party fails to institute an appeal within 60 days, the notice of appeal is deemed withdrawn under rule 83, so rule 84 does not arise
Costs
The Notice of Appeal dated 8th November 2017 was struck out with costs to the applicant; the notice of motion was allowed with costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As such, the notice of motion is allowed, and the Notice of Appeal dated 8 th November 2017 is hereby struck out with costs. As a consequence of that order, the stay of execution orders of this Court issued on 23 rd February 2018 are hereby vacated.
The direct consequence of this misstep is that the respondent cannot benefit from the proviso to rule 82 (1).
It is safe to say, therefore, that a notice of appeal dies a natural death after the expiry of 60 days unless its life should be sooner extended by lodgment of the appeal within 60 literal days
It is quite apparent that there is nothing that demonstrates that the letter was served on the applicant’s counsel at all, which leads us to the undeniable conclusion that a misstep in filing of the appeal occurred in that the letter requesting for proceedings was not served on the applicant’s counsel.
Issues in the judgment
#The judgment records the respondent's affidavit as dating the ELRC judgment to '7th November 2018' while elsewhere stating the decision was rendered on 8th November 2017; the court itself noted the confusion
The opening of the ruling refers to stay of execution orders issued on 23rd February 2018, while the applicant's averments state the stay was obtained on 23rd March 2018; the court vacates the orders of 23rd February 2018 in the final orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mabel Kibore v National Oil Corporation of Kenya Limited [2019] KECA 411 (KLR)", Case Analysis (2019). Civil Application No. 268 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/411/eng@2019-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.