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Court of AppealDismissedMotion dated 19th December 2019 (number not stated in judgment)· [2020] KECA 48 (KLR)

Wells Fargo Limited v Symon Migwi Karanja & 12 others [2020] KECA 48 (KLR)

Court of Appeal of Kenya
18 December 2020
PKP. O. Kiage
1,102 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed Wells Fargo's extension bid because no certificate of delay or proof of service justified its late appeal record.

What this practically means

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Executive summary

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Wells Fargo Limited applied under Rule 4 of the Court of Appeal Rules for an order extending time to file its Record of Appeal, or in the alternative that the record filed on 25th November 2019 be deemed filed in time. Judgment in the Employment and Labour Relations Court had been delivered on 20th July 2018 and a notice of appeal was duly lodged. The applicant explained that typed proceedings were ready for collection on 23rd September 2019, that the draft decree was circulated to the parties' advocates on 6th November 2019 with a seven-day approval window, that the Deputy Registrar signed the decree only on the afternoon of 22nd November 2019, and that the record was filed the following Monday, 25th November 2019 - a delay, counsel urged, of a single day. Kiage, JA rehearsed the settled Rule 4 considerations and held that the crucial issue was the computation of the 60-day period under Rule 82. Time taken to prepare typed proceedings is excluded only where the request for proceedings was in writing, served on the respondent, and the period certified by the registrar through a certificate of delay. No certificate of delay was on the record, and counsel's word could not supply its absence; consequently the 60 days ran uninterrupted and the delay was inordinate and unexplained. The application was dismissed with costs on 18th December 2020.

Key legal issues

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01

Factors governing extension of time under Rule 4

Holding

The settled considerations include length of and reasons for delay, prejudice, conduct of parties, balancing the right of appeal against timely resolution, public interest and prima facie chances of success

Reasoning

Although the Rules do not enumerate the factors, Judges of the Court have devised principles to guide the free discretion under Rule 4, drawn from Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees, and these frame the assessment of the application.

p. 2
02

Exclusion of time for typed proceedings under Rule 82(1) and (2)

Holding

The time-exemption is conditional on a written application for proceedings served on the respondent and certification by the registrar; absent a certificate of delay and proof of service, the 60 days for lodging the record run uninterrupted

Reasoning

Rule 82(2) is a condition precedent to the proviso in Rule 82(1). The court cannot ascertain the exempted period without a certificate of delay, and counsel's assertions cannot supply its absence. Following Mistry Premji Ganji and Kenya Ports Authority, the delay is therefore inordinate and unexplained.

p. 2

Legal principles established

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  • Where an appellant relies on the proviso to Rule 82(1) to exclude time taken to prepare typed proceedings, there must be a certificate of delay from the registrar and proof of service of the written request for proceedings on the respondent; without these, the 60-day period runs uninterrupted
  • Counsel's word cannot substitute for the absence of a certificate of delay in computing the exempted period
  • An applicant for extension of time must plausibly explain the cause of the delay

Court orders

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  1. 1.The Motion dated 19th December 2019 seeking extension of time to file the Record of Appeal is dismissed
  2. 2.The applicant to pay costs of the application

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 82(2)

Cases cited (4)

  • MURINGA COMPANY LTD V ARCHDIOCESE OF NAIROBI REGISTERED TRUSTEES
    [2020] eKLR
  • ANDREW KIPLAGAT CHEMARINGO V PAUL KIPKORIR KIBET
    [2018] eKLR
  • KENYA PORTS AUTHORITY V MAUR ABDALLA BWANAMAKA
    [2018] eKLR
  • MISTRY PREMJI GANJI (INVESTMENTS) LIMITED V KENYA NATIONAL HIGHWAYS AUTHORITY
    [2019] eKLR
On appeal from
Employment and Labour Relations Court, Nairobi
null (judgment delivered 20th July 2018; case number not stated)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent power to extend time)

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, "Wells Fargo Limited v Symon Migwi Karanja & 12 others [2020] KECA 48 (KLR)", Case Analysis (2020). Motion dated 19th December 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/48/eng@2020-12-18

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