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Court of AppealDismissedNot stated in the judgment· [2019] KECA 543 (KLR)

National Council for Persons With Disabilities v Elizabeth Irako Shiakamiri [2019] KECA 543 (KLR)

Court of Appeal of Kenya
5 July 2019
RNR. N. Nambuye
1,385 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed objections that relied on disputed contempt claims, confirming that allegations of fact cannot block a hearing on leave to appeal out of time.

What this practically means

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Executive summary

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This is a single-judge interlocutory ruling of the Court of Appeal at Nairobi by Nambuye, JA, delivered on 5 July 2019. The applicant had moved under Rule 4 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act for leave to appeal out of time. The respondent raised four preliminary objections contending that the applicants were in contempt of orders issued by Abuodha, J of the Employment and Labour Relations Court on 29 June 2015, had been cited for contempt in that court, and should first purge the contempt before being granted audience. The court applied the Mukisa Biscuits threshold for preliminary objections and held that the objections were unsustainable: there was no pleading anchoring the alleged contempt; the allegedly flouted orders were not before the court; Rule 4 expressly vests jurisdiction to determine applications for leave to appeal out of time, so want of jurisdiction did not arise; and the facts relied on by the respondent were disputed, a prerequisite for a preliminary objection being that the facts pleaded by the opposite side are correct and undisputed. The preliminary objections were dismissed and the parties were at liberty to canvass the extension-of-time application on its merits, with costs of the preliminary objection addressed in the orders. The ruling does not disturb any decision below; it merely clears the way for the extension-of-time application to be heard.

Key legal issues

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01

Sustainability of the preliminary objections based on alleged contempt

Holding

The preliminary objections are unsustainable because there is no pleading before the court on the alleged contempt, the allegedly flouted orders are not before the court, and the facts are disputed.

Reasoning

Applying the Mukisa Biscuits threshold, the court found three deficiencies: no pleading anchoring the objection; no jurisdictional or limitation issue since Rule 4 of the Court of Appeal Rules expressly vests jurisdiction to entertain applications for leave to appeal out of time; and no consensus on the facts, with the parties disputing whether contempt was purged and whether the orders to be appealed are the orders allegedly flouted.

p. 2
02

Jurisdiction to grant leave to appeal out of time

Holding

Rule 4 of the Court of Appeal Rules explicitly vests jurisdiction in the Court to receive, entertain and determine applications for leave to appeal out of time.

Reasoning

The court held that issues of want of jurisdiction do not arise because Rule 4 of the Court of Appeal Rules expressly confers jurisdiction on the Court to receive, entertain and determine applications for extension of time. Limitation and arbitration grounds were also not raised as grounds of the objection, so they could not sustain it.

p. 2

Legal principles established

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  • A preliminary objection must be anchored on a pleading, raise a pure point of law on undisputed facts, and must not seek the exercise of judicial discretion.

Court orders

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  1. 1.The preliminary objections raised by the respondent are dismissed
  2. 2.The parties are at liberty to canvass the application for leave of court to file an appeal out of time
  3. 3.Costs of the preliminary objection in the application (awarded as a stated item)

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B

Cases cited (1)

  • Mukisa Biscuits Co. case
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "National Council for Persons With Disabilities v Elizabeth Irako Shiakamiri [2019] KECA 543 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/543/eng@2019-07-05

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