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Court of AppealDismissed· [2021] KECA 77 (KLR)

Nadite v National Police Service Commission (Civil Application E090 of 2021) [2021] KECA 77 (KLR)

Court of Appeal of Kenya
8 October 2021
DMD. K. Musinga
745 words in judgment
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The bottom line

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The Court of Appeal refused to forgive a two-year, unexplained delay in filing an appeal, showing Kenya's courts won't extend time without a good reason.

What this practically means

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Executive summary

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This was a single-judge application under rule 4 of the Court of Appeal Rules seeking leave to file and serve an appeal and the record of appeal out of time. The applicant, a former Police Constable removed from the National Police Service following the 2013 vetting exercise on grounds of lacking financial propriety, had her petition dismissed by the Employment and Labour Relations Court at Nakuru on 7 March 2019. A notice of appeal was filed on 18 March 2019 by her former advocates, and typed and certified proceedings were issued on 1 September 2020, yet no appeal was lodged. The application was filed in May 2021, an inordinate delay of more than two years. The respondent opposed, pointing out that proceedings were available to other petitioners as early as 21 March 2019. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi and Aviation Cargo Support Limited v St. Mark Freight Services Limited, Musinga, JA (President) held that the delay was inordinate and unexplained; the applicant failed to demonstrate any diligent effort or enquiries made between September 2019 and May 2021. The court reaffirmed that where there is unexplained inordinate delay, it need not consider the other extension-of-time principles. The application was dismissed with costs to the respondent on 8 October 2021 in Nairobi.

Key legal issues

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01

Whether the inordinate and unexplained delay justified extension of time

Holding

The application was dismissed because the delay of over two years was unexplained and the applicant showed no diligence in pursuing the appeal.

Reasoning

Judgment was delivered on 7 March 2019 and the application was filed in May 2021. Typed proceedings were available by 21 March 2019, and even if obtained in September 2019, no explanation was given for not filing the appeal. The applicant did not show she made enquiries of her former advocates. Discretion must be exercised judiciously, and unexplained inordinate delay disposes of the application without considering the other principles.

p. 2

Legal principles established

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  • In a rule 4 extension-of-time application the court considers the length of the delay, the reason for the delay, the chances of success of the intended appeal and the prejudice to the respondent.
  • Where there has been unexplained inordinate delay, the court need not consider the other extension-of-time principles.

Court orders

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  1. 1.The application for extension of time was dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 47
  • Fair Administrative Action ActSection 4
  • National Police Vetting Regulations2013
  • Court of Appeal RulesRule 4

Cases cited (2)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
  • Aviation Cargo Support Limited v St. Mark Freight Services Limited
On appeal from
Employment and Labour Relations Court at Nakuru
Petition No. 11 of 2018
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of 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, "Nadite v National Police Service Commission (Civil Application E090 of 2021) [2021] KECA 77 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/77/eng@2021-10-08

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