Murata Sacco Society Ltd V Banking, Insurance Finance Union (Kenya) [2019] KECA 904 (KLR)
The bottom line
#The Court of Appeal refused Murata Sacco permission to revive its late appeal, confirming that unexplained delay cannot be fixed even by a strong case.
What this practically means
#Executive summary
#Key legal issues
#Satisfactory explanation for delay
The applicant's explanation for the three-and-a-half month delay in filing the present application was unsatisfactory; the court found the applicant was stirred into action only when the respondent moved to release the security deposit
The court found the explanation - that counsel had to wait for the file to be located and proceedings typed - untenable because the typed proceedings were not necessary for the application and were in fact not annexed. The court inferred the application was tactical, prompted by the respondent's application to discharge the stay and release the Kshs. 5,000,000 deposit, and declined to exercise its discretion in favour of the applicant.
Liberty to restart the appellate process
Although the initial notice of appeal was struck out, the applicant retained liberty to restart the appellate process, but only if it acted promptly, which it did not
Relying on Jedida Alumasa v S.S. Kositany, the court accepted that striking out of the notice of appeal did not bar a fresh start. However, the ruling striking out the initial notice conclusively established inordinate, unexplained delay for the earlier period, and the new delay of close to three and a half months was likewise unexplained, so the discretion could not be exercised in the applicant's favour.
Arguability of intended appeal
Even if the intended appeal were arguable, arguability alone cannot justify extension of time absent a satisfactory explanation for the delay
The court acknowledged the intended appeal might be arguable, given the questions of wrongful termination and legality of the awards raised. But it held that the absence of a satisfactory explanation for the delay is fatal to a Rule 4 application; the arguability of the appeal cannot compensate for unexplained inordinate delay.
Legal principles established
#- A litigant whose appeal has been struck out may restart the appellate process, but must do so promptly by seeking an extension of time
- In a Rule 4 extension-of-time application the court considers the period of delay, the reason for the delay, arguability, prejudice and other relevant factors, but without a satisfactory explanation for delay the discretion will not be exercised in the applicant's favour
Court orders
#- 1.The application dated 30th April 2018 is dismissed with costs to the respondent
- On appeal from
- Industrial Court (Land and Employment Court)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules and Section 3A of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murata Sacco Society Ltd V Banking, Insurance Finance Union (Kenya) [2019] KECA 904 (KLR)", Case Analysis (2019). Application dated 30th April 2018 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/904/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.