Kirinyaga Construction Limited v Katherine Wairimu Ndungu (suing as Administrator of the Estate of Francis Ndungu Githinji) [2019] KECA 886 (KLR)
The bottom line
#Kenya's Court of Appeal allowed an employer to fix a two-day-late, defective appeal notice, ruling brief delays and counsel mistakes shouldn't bar justice.
What this practically means
#Executive summary
#Key legal issues
#Length of delay in filing Notice of Appeal
A two-day delay is not inordinate and does not justify withholding extension of time under Rule 4.
The court surveyed authorities where far longer unexplained delays (twenty months, sixty days, thirteen days) led to refusal of extension. Measured against those precedents, a two-day delay was trivial and could not justify shutting the applicant out of the appellate process.
Advocate's inadvertence as explanation for delay
Where the delay is caused by the advocate's inadvertence, it should not be visited upon the litigant who gave timely instructions.
Relying on Lee G. Muthoga v Habib Zurich, CFC Stanbic v John Maina Githaiga and National Bank of Kenya v Kisumu Papermills (approving Murai v Wainaina), the court held that the doors of justice are not closed because a mistake has been made by a person of experience; the applicant had instructed counsel promptly and acknowledged the error.
Arguability of the intended appeal
The intended appeal, raising negligence, intoxication of the deceased and the running of interest from 2007, was arguable.
The draft memorandum of appeal disclosed contentions that the accident was occasioned by the deceased's own negligence or intoxication, that the Judge misapprehended facts and misapplied the law, and that the order on interest from 2007 was erroneous. Applying Joseph Wanjohi Njau v Benson Maina Kabau, arguability suffices; the appeal need not succeed.
Prejudice to the respondent
Delay in accessing the fruits of the judgment is a relevant consideration but is redressable through execution.
The respondent cited being withheld from enjoyment of her judgment as prejudice. The court held that the appropriate remedy for that grievance lies in the execution process, not in defeating the extension application.
Leave to file record of appeal out of time
The prayer was premature and rejected because typed proceedings had not been supplied.
The applicant itself admitted in the supporting affidavit that it was yet to be supplied with a copy of typed proceedings. Without a record in existence, the court could not consider leave to file it out of time.
Legal principles established
#- A delay of two days in lodging a Notice of Appeal beyond the timelines in Rule 75 of the CAR is not inordinate and does not justify withholding extension of time
- A litigant should not be penalized for the mistakes of the advocate, particularly where the delay is minimal and instructions were given in good time
- An arguable appeal need not be one that must ultimately succeed; it is one that ought to be argued fully before the court
- The right to be heard, being constitutionally entrenched, can only be withheld in exceptional circumstances
- A defective Notice of Appeal can be cured by striking out the defective copy and extending time to file a proper one
- Leave to file a record of appeal out of time cannot issue where no record exists, as where typed proceedings have not yet been supplied
Court orders
#- 1.The purported Notice of Appeal filed on 3rd August, 2018 be and is hereby struck out
- 2.The applicant has fourteen (14) days of the date of the ruling to file and serve a proper notice of appeal and thereafter to proceed according to law
- 3.Costs of the application to the respondent, to be agreed or taxed
- On appeal from
- Employment and Labour Relations Court, Nairobi
- Cause No. 1124 of 2013
- Jurisdiction invoked
- Section 3A of the Appellate Jurisdiction Act; Rules 1(2), 4 and 41 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirinyaga Construction Limited v Katherine Wairimu Ndungu (suing as Administrator of the Estate of Francis Ndungu Githinji) [2019] KECA 886 (KLR)", Case Analysis (2019). Notice of Motion dated 19th December, 2018 (arising from Nairobi Employment and Labour Relations Court Cause No. 1124 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/886/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.