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Court of AppealDismissedApplication dated 30th April 2018 (Civil Application)· [2019] KECA 904 (KLR)

Murata Sacco Society Ltd V Banking, Insurance Finance Union (Kenya) [2019] KECA 904 (KLR)

Court of Appeal of Kenya
8 March 2019
1,964 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 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

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Executive summary

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Murata Sacco Society Ltd applied under Rule 4 of the Court of Appeal Rules and Section 3A of the Appellate Jurisdiction Act for leave to lodge a fresh notice of appeal out of time and to file its record of appeal, seeking to challenge an Industrial Court judgment of 7th October 2014 which found that former employees, members of the respondent Union, were wrongfully terminated and awarded damages, interest and costs. The Sacco's initial notice of appeal had been struck out by the full Court on 19th January 2018 for inordinate, unexplained delay in filing the record of appeal, notwithstanding that a stay of execution had earlier been granted on condition that Kshs. 5,000,000 be deposited as security. The applicant relied on the principle in Jedida Alumasa v S.S. Kositany that a litigant whose appeal has been struck out may restart the appellate process, and urged the court to follow the Supreme Court's approach in Hassan Nyanje Charo on litigants not being penalised for court delays. Kairu JA accepted that the applicant was at liberty to start afresh, but only if it acted promptly. The present application was filed on 30th April 2018, three and a half months after the striking-out order, and the explanation - waiting for the lower court file to be located and proceedings typed - was found unsatisfactory, particularly since the typed proceedings were unnecessary for the application and were not in fact annexed. The court inferred the application was prompted only by the respondent's move to have the stay discharged and the security released. Holding that arguability of the intended appeal could not cure the absence of a satisfactory explanation for the delay, the learned Judge dismissed the application with costs to the respondent.

Key legal issues

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01

Satisfactory explanation for delay

Holding

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

Reasoning

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.

p. 3
02

Liberty to restart the appellate process

Holding

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

Reasoning

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.

p. 2
03

Arguability of intended appeal

Holding

Even if the intended appeal were arguable, arguability alone cannot justify extension of time absent a satisfactory explanation for the delay

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 30th April 2018 is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Appellate Jurisdiction ActSection 3A
  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure ActSection 7

Cases cited (8)

  • Hassan Nyanje Charo vs Khatib Mwashetani and 3 others
    [2014] eKLR
  • Jedida Alumasa & 3 others v S.S Kositany
    [1997] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC
    [2014] eKLR
  • Fakir Mohamed v Joseph Mugambi & 2 others
    [2005] eKLR
  • Mutiso vs Mwangi
    Civil Appl. NAI. 255 of 1997
  • Mwangi vs Kenya Airways Ltd
    [2003] KLR 486
  • Major Joseph Mwereri Igweta vs Murika M’Ethare & Attorney General
    Civil Appl. NAI. 8/2000
  • Murai v Wainaina (No 4)
    [1982] KLR 38
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

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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, "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.