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Court of AppealPartially AllowedNotice of Motion dated 5th May, 2021 (Rule 4 application, Court of Appeal, Nyeri Civil Appeal No. 4 of 2014 referred as underlying matter)· [2021] KECA 252 (KLR)

Obiero (suing on behalf of self and members of Lake Basin Development Authority Provident/Pension Scheme v Lake Basin Development Authority Board of Trustees & 9 others (Civil Application E077 of 2021) [2021] KECA 252 (KLR)

Court of Appeal of Kenya
3 December 2021
2,203 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave a late appellant extra time to appeal, accepting a doctor's sick-leave note as a good reason for missing the deadline.

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 (R. N. Nambuye, JA) delivered at Nairobi on 3rd December, 2021 on a Notice of Motion dated 5th May, 2021 brought under Rule 4 of the Court of Appeal Rules, 2010, seeking leave to file and serve a notice of appeal, memorandum and record of appeal out of time against a ruling delivered on 24th March, 2021, together with costs. The application was unopposed, but the court held it was still obliged to render a merits determination. Applying the crystallized principles in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others, the court considered the length of the delay (about one month and eleven days, held not inordinate), the reason for the delay (incapacitation evidenced by a doctor's report granting 45 days sick leave and a photograph of the applicant's bandaged arm, held well explained and excusable), the arguability of the intended appeal (the applicant's claim that his withdrawal of the petition was involuntary, caused by constructive dismissal for which he was later vindicated, was held arguable notwithstanding the absence of a draft memorandum), and prejudice to the respondent (none demonstrated, the application being undefended). The court further invoked Article 159(2)(d) of the Constitution and the constitutionally entrenched right to a hearing, holding that shutting out the applicant would be rendering justice on technicalities. The application was allowed: fourteen days to file the notice of appeal and letter bespeaking proceedings, seven days thereafter to serve it, failing which the leave would lapse. As the application was undefended, there was no order as to costs.

Key legal issues

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01

Length of delay

Holding

A delay of about one month and eleven days was not inordinate, being far less than delays in comparable authorities where relief was declined.

Reasoning

The ruling sought to be impugned was delivered on 24th March, 2021 and the application was filed on 5th May, 2021. Comparing this with a twenty-month delay in George Mwende Muthoni and a six-month lapse in Aviation Cargo Support, the court held the delay much shorter and therefore not inordinate, though this finding alone could not entitle the applicant to relief.

p. 3
02

Reason for the delay

Holding

Incapsulation evidenced by a doctor's report granting 45 days sick leave and a photograph of the bandaged arm explained and excused the delay.

Reasoning

The applicant annexed a medical report showing he was attended to on 22nd March, 2021 and granted 45 days sick leave, with a photograph of his right arm in bandages. The court found nothing to suggest the condition was feigned, and since the sick-leave period fell within the time for filing and serving the notice of appeal, the reason was well explained and excusable.

p. 3
03

Arguability of the intended appeal

Holding

The intended appeal challenging the costs order following involuntary withdrawal of the petition was arguable notwithstanding the absence of a draft memorandum.

Reasoning

Although no draft memorandum was annexed, the court could discern the grievances from the submissions. The applicant alleged his withdrawal of the petition was involuntary, occasioned by loss of locus standi through constructive dismissal, for which he was later vindicated and awarded damages. Penalizing him with costs was held to be a grievance warranting the court's interrogation.

p. 3
04

Prejudice to the respondent and the right to be heard

Holding

No prejudice was demonstrated given the absence of any response, and shutting the applicant out would offend the constitutionally entrenched right to a hearing.

Reasoning

The application was unopposed and no prejudice was demonstrated. The court invoked authority holding the right to a hearing constitutionally entrenched and the cornerstone of the rule of law, such that a decision reached in violation of it will be nullified as a breach of natural justice. Combined with Article 159(2)(d), the interests of justice demanded the applicant be accorded an opportunity to pursue his appellate right.

p. 4

Legal principles established

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  • Extension of time is not a right but an equitable remedy available to a deserving party at the court's discretion, with the applicant bearing the burden of laying a basis for it.
  • An intended appeal need not be one that must succeed; it suffices that it is arguable and would invite a response from the opposite party.
  • Article 159(2)(d) of the Constitution is not a panacea for all procedural ills, but technicalities should not be used to shut out a litigant where power exists to extend time.
  • Where no draft memorandum of appeal is annexed, the court may discern the intended grievances from other supportive facts proffered by the applicant.

Court orders

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  1. 1.The applicant's application dated 5th May, 2021 allowed on the following terms
  2. 2.The applicant has fourteen (14) days from the date of the delivery of the ruling to file both a notice of appeal and a letter bespeaking proceedings
  3. 3.The applicant has seven (7) days from the date of the lodging of the notice of appeal to serve the notice of appeal on the opposite party
  4. 4.In default of compliance with the terms in item 1, the leave granted shall stand lapsed
  5. 5.No order as to costs as the application was undefended
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010

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, "Obiero (suing on behalf of self and members of Lake Basin Development Authority Provident/Pension Scheme v Lake Basin Development Authority Board of Trustees & 9 others (Civil Application E077 of 2021) [2021] KECA 252 (KLR)", Case Analysis (2021). Notice of Motion dated 5th May, 2021 (Rule 4 application, Court of Appeal, Nyeri Civil Appeal No. 4 of 2014 referred as underlying matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/252/eng@2021-12-03

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