Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedApplication dated 28th August, 2019· [2020] KECA 668 (KLR)

Tobias Apollo Awuor v Teleposta Co-operative Sacco Society Limited & another [2020] KECA 668 (KLR)

Court of Appeal
8 May 2020
FSF. Sicha
1,143 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal let a delayed appeal proceed, ruling that a lawyer's failure to notify a client of judgment justifies extra time to appeal.

What this practically means

#

Executive summary

#
This was a single-Judge application under Rule 4 of the Court of Appeal Rules seeking leave to lodge a notice of appeal and record of appeal out of time against a judgment of the Employment and Labour Relations Court (Abuodha, J.) delivered on 24th May, 2019. The applicant, Tobias Apollo Awuor, attributed the delay to his former advocates' failure to promptly notify him of the judgment, only instructing new advocates on 22nd August, 2019. The respondents opposed, citing an inordinate delay of about 10 months, late service of the application on the hearing date, and the absence of a draft memorandum of appeal. Applying the settled Rule 4 principles - length of delay, reasons for the delay, chances of success, and prejudice - the court inferred from the applicant's affidavit that the 14-day period under Rule 75(2) had not lapsed when he learned of the judgment, held that the delay was not inordinate, and reiterated that mistakes of advocates should not always defeat extension applications. Relying on Paul Wanjohi Mathenge v Duncan Gichane Mathenge, it further held that failure to attach a draft memorandum of appeal is not fatal. The application was allowed: the notice of appeal was to be filed and served within 7 days and the record of appeal within 45 days, failing which the motion would stand dismissed. Costs were reserved to the intended appeal.

Key legal issues

#
01

Whether the delay in filing the notice and record of appeal was satisfactorily explained

Holding

The delay was not inordinate; blame attributable to former advocates' failure to notify the applicant of the judgment, and the 14-day period under Rule 75(2) had not lapsed when the applicant was informed.

Reasoning

The court examined the supporting affidavit, noting it did not specify the date the applicant was notified, but inferred from paragraph 8 that notification occurred within the 14-day window. The court also noted that delays caused by advocates' mistakes should not always defeat extension applications and found the delay not inordinate.

p. 2
02

Whether failure to annex a draft memorandum of appeal was fatal

Holding

It was not fatal; the court agreed with the dicta in Paul Wanjohi Mathenge v Duncan Gichane Mathenge.

Reasoning

While the purpose of a draft memorandum is to enable the court assess injustice or prejudice, following Odek, J.A. in Paul Wanjohi Mathenge, the court held that omission of a draft memorandum does not defeat a Rule 4 application.

p. 2

Legal principles established

#
  • Rule 4 applications are decided on the principles of length of delay, reasons for delay, chances of success of the intended appeal and prejudice to the respondent.
  • Failure to attach a draft memorandum of appeal is not fatal to an application under Rule 4.
  • Delays resulting from mistakes of advocates should not always lead to dismissal of applications for extension of time.

Court orders

#
  1. 1.Notice of Appeal to be filed and served within 7 days of delivery of the ruling
  2. 2.Record of appeal to be filed and served within 45 days of filing of the Notice of Appeal
  3. 3.Failure to comply with the timelines, the Notice of Motion application dated 25th September, 2019 shall stand dismissed
  4. 4.Costs shall be in the intended appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75(2)

Cases cited (3)

  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR 486
  • Pollok House Ltd v Nairobi Wholesalers Ltd
    [1972] EA 172
  • Paul Wanjohi Mathenge versus Duncan Gichane Mathenge
    [2013] eKLR
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Tobias Apollo Awuor v Teleposta Co-operative Sacco Society Limited & another [2020] KECA 668 (KLR)", Case Analysis (2020). Application dated 28th August, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/668/eng@2020-05-08

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