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Court of AppealStruck OutCivil Appeal (Application) No. 80 of 2017

Fredrick Odhiambo Madote v Insteel Limited [2019] KECA 760 (KLR)

Court of Appeal
29 April 2019
MMM. A. MakhandiaPKP. KiageOTOtieno-Odek
256 words in judgment
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The bottom line

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The Court of Appeal struck out Insteel Limited's appeal because it was filed late without asking for an extension of time.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Kisumu disposed of a Notice of Motion dated 21st August 2017 by which Fredrick Odhiambo Madote, the respondent in the intended appeal, sought that the appeal by Insteel Limited be struck out for having been filed out of time. The appeal lay from the judgment and decree of the Employment and Labour Relations Court at Kisumu (Wasilwa, J.) dated 26th November 2014 in Civil Suit No. 141 of 2013. The court noted that the respondent did not deny that the appeal was filed out of time, despite a feeble attempt to explain the default. Counsel for the appellant conceded, as he had to, that the proper way to regularise such defaults and delays was to file an application for extension of time, but no such application had been made. On that concession and on the record showing the appeal was hopelessly out of time, the court found the appeal incompetent and struck it out, awarding costs to the applicant in the application (the respondent in the appeal). The ruling was delivered on 29th April 2019 by Makhandia, Kiage and Otieno-Odek, JJ.A., as a single judgment of the court. As a striking-out at the threshold, the underlying ELRC decision was not affirmed, varied or reversed, and the ruling's binding force lies in its restatement that a time-barred appeal without an extension-of-time application is incompetent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal, having been filed out of time without an application for extension of time, should be struck out

Key legal issues

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01

Whether an appeal filed out of time without leave is competent

Holding

The court held that an appeal filed out of time is incompetent and must be struck out; the proper course is to seek an extension of time, which the appellant never did.

Reasoning

The court found the appeal was filed hopelessly out of time, a default the respondent did not seriously contest. Counsel for the appellant conceded that the only way to regularise such a delay was an application for extension of time, and no such application was on record. In the absence of such an application, the appeal was incompetent and liable to be struck out.

p. 1

Legal principles established

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  • An appeal filed out of time, where no application for extension of time has been made, is incompetent and liable to be struck out.

Court orders

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  1. 1.The appeal filed out of time is struck out
  2. 2.Costs of the application awarded to the applicant in the application (respondent in the appeal)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority
PK
majority
OT
majority
On appeal from
Employment and Labour Relations Court at Kisumu
Civil Suit No. 141 of 2013

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Given that inevitable concession, and the record being quite clear that the appeal was filed hopelessly out of time, the same is clearly incompetent and we agree with Mr. Otieno, learned counsel for the applicant that the same is for striking out.
p. 1Incompetence of out-of-time appeal without extension of time
It is accordingly struck out with costs to the applicant in the application who is the respondent in this appeal.
p. 1Final orders - striking out and costs

Issues in the judgment

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minor

The ruling does not expressly identify the procedural vehicle (rule under which the striking-out application was brought) nor any statutory provision invoked, limiting binding-proposition precision.

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, "Fredrick Odhiambo Madote v Insteel Limited [2019] KECA 760 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 80 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/760/eng@2019-04-29

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