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Court of AppealAllowedNot stated on the face of the ruling (Court of Appeal application under Rule 4)· [2020] KECA 373 (KLR)

Joyce Arus Owiti v National Police Service Commission [2020] KECA 373 (KLR)

Court of Appeal of Kenya
7 August 2020
2,944 words in judgment
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The bottom line

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Kenya's Court of Appeal let a worker appeal despite a year's delay, ruling that lawyers' mistakes shouldn't punish clients who act quickly to fix them.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by Nambuye, JA, on 7th August 2020, on a Notice of Motion dated 4th March 2020 brought under Rule 4 of the Court of Appeal Rules seeking leave to file a record of appeal out of time. The judgment the applicant sought to appeal was delivered on 7th March 2019, dismissing her petition in which she lost her job following a vetting process. Her advocates filed a notice of appeal timeously on 18th March 2019 but failed to lodge the record of appeal, despite proceedings having been ready for collection since 22nd March 2019. The respondent opposed, arguing that the roughly one-year delay was inordinate and unexplained and that the applicant failed to follow up with her advocates. The judge restated the settled principles governing Rule 4, drawing on Leo Sila Mutiso, Fakir Mohamed and, binding on all courts, the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat. Holding that the notice of appeal was filed timeously and that an advocate's default should not be visited on the client who acted promptly on discovering it, the judge found the explanation plausible, the intended grounds (including the fairness of the vetting process) arguable, and no prejudice to the respondent. The application was allowed: the applicant was granted thirty days to file and serve the record of appeal, with costs to abide the intended appeal and the leave to lapse with costs to the respondent in default.

Key legal issues

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01

Whether the delay of approximately one year in filing the record of appeal was satisfactorily explained

Holding

Yes. The notice of appeal was filed timeously; the default of the former advocate in filing the record of appeal is not visited on the applicant, who promptly changed advocates upon learning of the inaction.

Reasoning

The judge found that the applicant had an advocate on record who timeously filed the notice of appeal but failed to file the record of appeal despite proceedings being available. Although the applicant did not obtain an affidavit from her former advocate and could have been more diligent in following up, the delay was attributed to the advocate. Her prompt instruction of new counsel within a month of discovering the default made the explanation plausible.

p. 3
02

Whether the intended appeal was arguable

Holding

Yes. The proposed grounds - merit of the petition, fair hearing, nullity of the vetting process and breach of constitutional, statutory and regulatory provisions - were bona fide issues.

Reasoning

Applying the settled standard that an arguable appeal need not succeed but must raise bona fide issues, the judge found all the grounds raised in the draft memorandum of appeal arguable. The judge also noted the appeal concerned loss of the applicant's job and her constitutionally underpinned right of appeal, and that the respondent identified no prejudice.

p. 4

Legal principles established

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  • Extension of time under Rule 4 is an equitable discretionary remedy available to a deserving party, exercised on a case-by-case basis with reasonable explanation of delay.
  • A plausible and satisfactory explanation for delay is the key to the court's discretionary power under Rule 4.
  • A litigant is not penalized for an advocate's default in filing the record of appeal where instructions were given timeously and proceedings were available.
  • An arguable appeal is not one that must necessarily succeed but one raising a bona fide issue for determination.

Court orders

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  1. 1.The applicant has thirty days of the date of the ruling to file and serve the record of appeal
  2. 2.Costs of the application to abide the outcome of the intended appeal
  3. 3.In default of item (1) above the leave granted to stand lapsed with costs to the respondent
On appeal from
Employment and Labour Relations Court (trial court)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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, "Joyce Arus Owiti v National Police Service Commission [2020] KECA 373 (KLR)", Case Analysis (2020). Not stated on the face of the ruling (Court of Appeal application under Rule 4). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/373/eng@2020-08-07

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