Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNotice of motion dated 9th September 2019 (appeal from E.L.R.C No. 227 of 2013, Kisumu)· [2021] KECA 273 (KLR)

Eldoret Grains Limited v Kipkoech & 14 others (Civil Application 108 of 2019) [2021] KECA 273 (KLR)

Court of Appeal of Kenya
3 December 2021
JMJ. Mohammed
1,243 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused Eldoret Grains more time to appeal, ruling that blaming your lawyer for inaction does not excuse a nine-month delay.

What this practically means

#

Executive summary

#
This was a single-judge ruling of the Court of Appeal on an application under Rule 4 of the Court of Appeal Rules and Order 50 Rule 6 of the Civil Procedure Rules by Eldoret Grains Limited seeking leave to file a memorandum and record of appeal out of time against a judgment of the Employment and Labour Relations Court at Kisumu (Rika, J) delivered on 6th December 2018. The applicant blamed its erstwhile advocates for the roughly nine-month delay. The respondents opposed, noting that the decree of Kshs.1,345,976 had been settled by a consent adopted as a court order on 6th February 2020, rendering the application academic, and that the delay exceeded two years and was unexplained. Applying the classic four-factor test in Leo Sila Mutiso v Hellen Wangari Mwangi - length of delay, reason for delay, chances of success, and prejudice - the court found the explanation unsatisfactory. Relying on Rajesh Rughani and Bains Construction, it held that merely accusing an advocate of inaction is not an excusable mistake and that a client must pursue its own matter; the absence of any affidavit from the erstwhile advocates meant they could only be surmised to have been inactive. The applicant failed to demonstrate the Mutiso parameters, and the respondents were entitled to enjoy the fruits of their judgment. The notice of motion dated 9th September 2019 was dismissed with costs to the respondents. This is not a binding appellate pronouncement on the merits of the underlying employment dispute; its precedential value lies in the restatement of the Rule 4 extension-of-time principles.

Key legal issues

#
01

Whether the delay of approximately nine months in filing the intended appeal was excusable

Holding

The delay was not satisfactorily explained; blaming the erstwhile advocates without an affidavit from them amounts to inaction, and the client bore responsibility to follow up

Reasoning

The applicant attributed the delay to the negligence and mistake of its erstwhile advocates but filed no affidavit from those advocates. Following Rajesh Rughani and Bains Construction, inaction by an advocate is not an excusable mistake, and where counsel as agent fails to perform, the principal bears the consequences. The applicant also had a duty to follow up on the progress of its matter.

p. 3
02

Whether the intended appeal had chances of success and whether respondents would suffer prejudice

Holding

The applicant did not demonstrate the Mutiso parameters; the claim that the appeal was meritorious was insufficient, and respondents were entitled to enjoy the fruits of their judgment

Reasoning

On merits, the court applies only a 'possibly' threshold, not a final determination, per Athuman Nusura Juma. On prejudice, the court balances competing interests; the respondents asserted they would suffer irreparable damage having expended resources in litigation and being entitled to enjoy the fruits of a judgment satisfied by consent. Balancing the factors, the applicant failed.

p. 3

Legal principles established

#
  • Extension of time under Rule 4 is discretionary and turns on four considerations: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent
  • Merely blaming an advocate for failure to act is not an excusable mistake; a client must also pursue its matter
  • There is no minimum or maximum period of delay; any delay must be satisfactorily explained

Court orders

#
  1. 1.The notice of motion dated 9th September 2019 is dismissed with costs to the respondents

Authorities

#

Legislation

  • Court of Appeal RulesRule 4
  • Civil Procedure RulesOrder 50 Rule 6

Cases cited (5)

  • Leo Sila Mutiso v Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Andrew Kiplagat Chemaringo v. Paul Kipkorir Kibet
    [2018] eKLR
  • Rajesh Rughani vs Fifty Investment Ltd. & Another
    (2005) eKLR
  • Bains Construction Co. Ltd. vs John Mzare Ogowe
    (2011) eKLR
  • Athuman Nusura Juma v. Afwa Mohamed Ramadhan CA No. 227 of 2015
On appeal from
Employment and Labour Relations Court at Kisumu
E.L.R.C No. 227 of 2013
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), with Order 50 Rule 6 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Eldoret Grains Limited v Kipkoech & 14 others (Civil Application 108 of 2019) [2021] KECA 273 (KLR)", Case Analysis (2021). Notice of motion dated 9th September 2019 (appeal from E.L.R.C No. 227 of 2013, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/273/eng@2021-12-03

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