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Court of AppealPartially AllowedNotice of Motion dated 7th January, 2019 (arising from Employment Cause No. 2241 of 2017)· [2019] KECA 824 (KLR)

Moroo Polymers Limited v Wilfred Kasyoki Willis [2019] KECA 824 (KLR)

Court of Appeal
8 March 2019
RNR.N. Nambuye
2,921 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave Maroo Polymers 14 more days to file its appeal notice, but refused a stay because no valid appeal had been lodged.

What this practically means

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Executive summary

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This is a ruling by a single Judge of the Court of Appeal (Nambuye, JA) delivered at Nairobi on 8th March 2019 on a notice of motion dated 7th January 2019 by Maroo Polymers Limited, the unsuccessful party before Ong'aya J of the Employment and Labour Relations Court, who delivered judgment on 14th December 2018. The applicant sought, inter alia, extension of time to file a notice of appeal and a stay of execution. The court first struck out prayers 3 and 4 for stay premised on Rule 5(2)(b) of the Court of Appeal Rules, holding that such prayers can only be anchored on a valid notice of appeal, none being in place, and that an appeal is deemed initiated only upon filing a valid notice under Rule 75(1). Order 43 of the Civil Procedure Rules was also struck out as irrelevant to the Court of Appeal's jurisdiction. The court then assessed the Rule 4 extension-of-time principles drawn from a settled line of authority: length and reason for delay, arguability of the intended appeal, prejudice to the respondent, and other relevant factors including the constitutionally protected right to be heard. Finding the 13-day delay past the Rule 75 deadline occasioned by the director's absence from jurisdiction, instructions given promptly on his return, the intended appeal arguable on the draft memorandum, and no prejudice shown by the unopposing respondent, the court extended time by fourteen days from the date of the ruling for filing and serving the notice of appeal, with costs of the application in the cause. The application was thus partially allowed.

Key legal issues

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01

Whether prayers for stay under Rule 5(2)(b) could be entertained without a valid notice of appeal

Holding

They could not; such prayers can only be anchored on a valid notice of appeal, which was absent, making them premature

Reasoning

Rule 75(1) is the cornerstone of the appellate process; an appeal is deemed initiated only upon filing a valid notice of appeal. Without one in place, a single Judge cannot entertain stay prayers under Rule 5(2)(b). The court accordingly struck out prayers 3 and 4 as premature.

p. 1
02

Whether Order 43 of the Civil Procedure Rules was applicable in the Court of Appeal

Holding

It was not; Order 43 governs appealability of orders from the High Court and has nothing to do with the Court of Appeal's procedural jurisdiction under the CAR

Reasoning

Order 43 merely identifies orders appealable from the High Court as of right or with leave. It does not regulate procedure before the Court of Appeal, which is governed exclusively by the Court of Appeal Rules. The court struck it out from the motion.

p. 1
03

Whether the delay of 27 days from judgment (13 days past the Rule 75 deadline) was excusable to warrant extension of time

Holding

Yes; the delay was occasioned by the director's absence from the jurisdiction, was explained, was not inordinate, and no prejudice to the respondent was shown

Reasoning

The applicant had to satisfy the Rule 4 prerequisites notwithstanding non-opposition. The delay of 13 days past the deadline was attributed to the director, the only person able to give instructions, who gave them promptly on return. The intended appeal was found arguable on the draft memorandum, and no prejudice was demonstrated as the respondent neither responded nor appeared.

p. 3

Legal principles established

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  • An appeal to the Court of Appeal is deemed initiated only upon filing of a valid notice of appeal in accordance with Rule 75(1); Rule 5(2)(b) applications cannot be sustained without one
  • The discretion under Rule 4 to extend time is wide and unfettered and must be exercised judicially, guided by the length of and reason for delay, arguability of the intended appeal, prejudice to the respondent, and other relevant factors
  • Non-compliance with Rule 75 does not of itself shut a litigant out of the seat of justice; the right to a hearing is constitutionally protected and may be withheld only in exceptional circumstances

Court orders

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  1. 1.Prayers 3 and 4 premised on Rule 5(2)(b) of the Court of Appeal Rules struck out as premature
  2. 2.Order 43 of the Civil Procedure Rules struck out from the application
  3. 3.Time extended by fourteen (14) days from the date of the ruling for the applicant to file and serve a notice of appeal, thereafter to proceed according to law
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Court of Appeal Rules (CAR)Rule 4
  • Court of Appeal Rules (CAR)Rule 5(2)(b)
  • Court of Appeal Rules (CAR)Rule 41
  • Court of Appeal Rules (CAR)Rule 75(1),(2),(3),(6)
  • Civil Procedure Rules (CPR)Order 43
  • Constitution of Kenyaright to a hearing (implied)

Cases cited (16)

  • Edith Gichugu Koine versus Stephen Njagi Thoithi
    [2014] eKLR
  • Nyaigwa Farmers' Co-operative Society Limited versus Ibrahim Nyambare & 3 Others
    [2016] eKLR
  • Hon. John Njoroge Michuki & Another versus Kentazuga Hardware Limited
    [1998] eKLR
  • Cargil Kenya Limited Nawal Versus National Agricultural Export Development Board
    [2015] eKLR
  • Fakir Mohamed versus Joseph Mugambi & 2 Others
    CA Nai. 332 of 2004
  • Paul Wanjohi Mathenge versus Duncan Gichane Mathenge
    [2013] eKLR
  • Joseph Wanjohi Njau versus Benson Maina Kabau
    Civil Application No. 97 of 2012
  • Richard Nchapi Leiyagu versus IEBC & 2 Others
    Civil Appeal No. 18 of 2013
  • Julius Kamau Kathekea vs. Weruguru Katheka Ayaga and 2 others
    [2013] eKLR
  • Paul Wanjohi versus Dancan Gichane Mathenge
    [2013] eKLR
  • Gachuhi Muithanji versus Mary Njuguna
    [2014] eKLR
  • Dominic Mutei Kombo and 2 others versus Kyule Makau
    [2015) eKLR
  • George Mwende Muthoni vs Mama Day Nursery and Primary School, Nyeri
    CA No. 4 of 2014 (UR)
  • Aviation Cargo Support Limited vs. St Marks Freight Services Limited
    [2014] eKLR
  • Christopher Mugo Kamotho vs. the Hon. Attorney General
    [2009] eKLR
  • Winfred Kasyoki Willis V. Maroo Polymers Limited
    Employment Cause No. 2241 of 2017
On appeal from
Employment and Labour Relations Court
Employment Cause No. 2241 of 2017
Jurisdiction invoked
Rule 4, 41 and 75(1) of the Court of Appeal Rules (single Judge jurisdiction); Order 43 of the Civil Procedure Rules raised but struck out

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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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, "Moroo Polymers Limited v Wilfred Kasyoki Willis [2019] KECA 824 (KLR)", Case Analysis (2019). Notice of Motion dated 7th January, 2019 (arising from Employment Cause No. 2241 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/824/eng@2019-03-08

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