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Court of AppealAllowedCivil Application Nai. No. 246 of 2019· [2020] KECA 948 (KLR)

WS Insight Limited v Adam Miller

Court of Appeal
24 January 2020
JMJ Mohammed
1,027 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a single-judge in-chambers ruling of the Court of Appeal at Nairobi by J. Mohammed, JA, on an application under Rule 4 of the Court of Appeal Rules for extension of time to serve a notice of appeal out of the required period. The applicant, WS Insight Limited, had filed its notice of appeal within fourteen days of the ruling of Onyango, J in the Employment and Labour Relations Court, but failed to serve it on the respondent, a defect discovered only when the respondent raised it in opposing a stay-of-proceedings application in the ELRC. The application was filed about eight months after the notice of appeal. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi - length of delay, reason for delay, arguability and prejudice - the court held the delay was not inordinate and was well explained as an inadvertent error, that the draft memorandum raised arguable issues including the ELRC's jurisdiction under Section 12(1)(a) where no employer-employee relationship exists, and that any prejudice could be ameliorated by an expedited hearing. The application was allowed: the notice of appeal was to be served within seven days, the memorandum and record of appeal filed and served within forty-five days, and the costs of the application were made to abide the outcome of the intended appeal. The decision below was not disturbed; this ruling concerns only appellate access.

Key legal issues

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01

Inordinate delay and its explanation

Holding

The roughly eight-month delay was not inordinate because the notice of appeal was filed in time and the failure to serve it was an inadvertent error rectified promptly once discovered.

Reasoning

The court considered the length of delay in light of the explanation advanced. The notice of appeal was filed within the fourteen days required, proceedings were bespeaked, and counsel explained the non-service as inadvertent, discovered only when the respondent opposed the stay application, after which the applicant moved expeditiously.

p. 2
02

Arguability of the intended appeal

Holding

The intended appeal is not frivolous, raising among other issues the jurisdiction of the ELRC where no employer-employee relationship exists.

Reasoning

Perusing the draft Memorandum of Appeal, the judge found issues including whether the ELRC had jurisdiction under Section 12(1)(a) of the ELRC Act where the parties were not in an employer-employee relationship, and applied the Wasike v Swala standard that arguability does not mean probable success.

p. 2
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Prejudice to the respondent

Holding

Any prejudice to the respondent would be ameliorated by an expedited hearing of the appeal.

Reasoning

The court balanced the competing interests of the parties and was satisfied that directing an expedited hearing once the appeal is filed would cure the prejudice arising from the late service of the notice of appeal.

p. 2

Legal principles established

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  • Extension of time is discretionary but must be judicially exercised, weighing length of and reason for delay, arguability and prejudice.
  • An arguable appeal need not be one that will ultimately succeed.

Court orders

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  1. 1.The application for extension of time to serve the notice of appeal is allowed
  2. 2.The Notice of Appeal shall be served upon the respondent within seven (7) days from the date of delivery of the ruling
  3. 3.The applicant shall file and serve the Memorandum and Record of Appeal within forty five (45) days from the date of delivery of the ruling
  4. 4.The costs of the application shall abide by the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 77
  • Court of Appeal RulesRule 82
  • Employment and Labour Relations Court ActSection 12(1)(a)

Cases cited (3)

  • Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997 (unreported)

    Guiding principles for extension of time: length and reason for delay, arguability, prejudice.

  • Joseph Wanjohi Njau -vs-Benson Maina Kabau
    [2013] eKLR

    Length of delay must be considered in light of the explanation advanced.

  • Wasike vs. Swala
    [1984] KLR 591

    An arguable appeal does not necessarily mean one which will succeed.

On appeal from
Employment and Labour Relations Court at Nairobi
Employment and Labour Relations Court Cause No 1393 of 2017
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, "WS Insight Limited v Adam Miller", Case Analysis (2020). Civil Application Nai. No. 246 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/948/eng@2020-01-24

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