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)
The bottom line
#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
#Executive summary
#Key legal issues
#Length of delay
A delay of about one month and eleven days was not inordinate, being far less than delays in comparable authorities where relief was declined.
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.
Reason for the delay
Incapsulation evidenced by a doctor's report granting 45 days sick leave and a photograph of the bandaged arm explained and excused the delay.
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.
Arguability of the intended appeal
The intended appeal challenging the costs order following involuntary withdrawal of the petition was arguable notwithstanding the absence of a draft memorandum.
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.
Prejudice to the respondent and the right to be heard
No prejudice was demonstrated given the absence of any response, and shutting the applicant out would offend the constitutionally entrenched right to a hearing.
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.
Legal principles established
#- 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
#- 1.The applicant's application dated 5th May, 2021 allowed on the following terms
- 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.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.In default of compliance with the terms in item 1, the leave granted shall stand lapsed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.