Stephen & another v Nairobi City Water and Sewerage Company; Kenya County Government Workers Union (Interested Party) (Civil Application E189 of 2021) [2021] KECA 30 (KLR)
The bottom line
#Kenya's Court of Appeal let an employment appeal proceed two years late because blameless litigants' failed advocates — not they — caused the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether inordinate delay explained by an advocate's failure to file the appeal warrants extension of time
The delay, though inordinate, was fully explained: the applicants' former advocates took a fee deposit and led the applicants to believe the appeal had been filed, so the applicants were blameless.
The judgment was delivered on 1st March 2019 and the application came on 27th May 2021, which the court accepted was inordinate since proceedings were ready by 24th September 2019. However, the applicants had paid their erstwhile advocates a deposit and were given the impression the appeal had been filed; the firm instead failed to file and closed its offices. The court attributed the delay entirely to the advocates and not to the applicants, finding the explanation sufficient.
Whether the intended appeal was arguable and whether the respondents would be prejudiced
The draft memorandum of appeal showed the intended appeal was arguable, and the respondents would suffer no prejudice if the application was granted.
In examining the draft memorandum annexed to the applicants' affidavit, the court found the intended appeal arguable, satisfying that limb of the Fakir Mohammed principles. The court further found the respondents would not be prejudiced by the grant. Although the application was unopposed, the court stressed it still had to satisfy itself that the extension-of-time principles were met, and having done so, it allowed the application.
Whether an unopposed extension application may be granted without scrutiny of the principles
Even where the application is not opposed, the court must independently consider whether the extension-of-time principles are satisfied.
The respondents did not oppose the application, but the court held that non-opposition does not dispense with its duty to test the application against the rule 4 principles: length of delay, reasons for delay, arguability of the intended appeal, and prejudice to the respondent. It proceeded to analyse each factor before allowing the application, confirming that the principles apply regardless of the respondents' stance.
Legal principles established
#- Applications for extension of time are guided by the length of the delay, the reasons for the delay, the chances of success of the intended appeal, and the degree of prejudice to the respondent.
Court orders
#- 1.Leave granted to the applicants to file the record and memorandum of appeal out of time, to be filed and served within 14 days
- 2.The notice of appeal filed on 1st March 2019 deemed as duly filed
- 3.Application allowed with costs in the appeal
- On appeal from
- Employment and Labour Relations Court
- ELRC Cause No. 1334 of 2013
- Jurisdiction invoked
- Rules 4 and 41 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen & another v Nairobi City Water and Sewerage Company; Kenya County Government Workers Union (Interested Party) (Civil Application E189 of 2021) [2021] KECA 30 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/30/eng@2021-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.