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Court of AppealDismissedCivil Application No. E063 of 2021· [2021] KECA 390 (KLR)

George Ochieng Onyango v Chemilil Sugar Company [2021] KECA 390 (KLR)

Court of Appeal of Kenya
23 July 2021
HOH. A. Omondi
1,704 words in judgment
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The bottom line

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The Court of Appeal refused to extend time to appeal because the applicants could not prove they ever instructed their lawyer to file the notice.

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 delivered by H.A. Omondi, JA, on an application under Rules 4 and 47 of the Court of Appeal Rules, 2010, seeking extension of time to lodge a Notice of Appeal against the judgment of the Employment and Labour Relations Court at Kisumu (Wasilwa, J) of 24th March 2021, which dismissed the applicant's claim for unfair termination and terminal dues as statute-barred under section 27 of the Limitation of Actions Act, the claim being founded on contract and filed beyond six years. The applicant blamed his former advocate for failing to lodge the Notice of Appeal due by 12th April 2021. The court restated the settled principles governing Rule 4: the discretion is wide and unfettered but must be exercised judicially, guided by the length of and reasons for the delay, prejudice to the respondent, and the arguability of the intended appeal, citing Salat vs IEBC and other authorities. Although mistakes of counsel are generally not visited on clients, the court found no documentary corroboration that instructions to lodge the appeal were ever given, and the delay was therefore unexplained. Applying the principle that a single judge cannot conclusively determine the merits, the court nonetheless was not persuaded the appeal was arguable. The application was dismissed with costs to the respondent, and the ruling applies mutatis mutandis to the companion applications E064, E065 and E066 of 2021 arising from the same test suit.

Key legal issues

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01

Whether the delay in filing the Notice of Appeal was satisfactorily explained

Holding

The application was dismissed because the applicant failed to corroborate his claim that he had instructed his advocate to lodge the Notice of Appeal; mere blame of counsel without evidence does not absolve the applicant.

Reasoning

Judgment was delivered on 24th March 2021 and the Notice of Appeal was due by 12th April 2021. Although blaming a former advocate is sometimes an accepted explanation, the court found no affidavits or communication evidencing the instructions. Without even a scintilla of such evidence, the applicant failed to satisfy the Salat principles laying a basis for extension of time.

p. 2
02

Arguability of the intended appeal

Holding

The court, taking care not to make a conclusive merits determination, was not persuaded the applicant would mount an arguable appeal, the trial decision having turned on statutory limitation.

Reasoning

While a single judge must not determine the merits with finality, the court considered the intended appeal's prospects. The trial court's judgment rested on limitation of actions - the claim founded on contract being time-barred under section 27 of the Limitation of Actions Act - and the court found no arguable appeal discernible on that footing.

p. 3

Legal principles established

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  • Rule 4 of the Court of Appeal Rules confers an unfettered discretion that must be exercised judiciously, considering the period and reason for delay, prejudice, and whether the appeal is arguable.
  • Extension of time is not an automatic right but an equitable remedy available to a deserving party, and the applicant bears the burden of laying a basis for it.
  • A single judge should not conclusively determine the merits of an intended appeal when assessing arguability.

Court orders

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  1. 1.The application dated 29th April 2021 seeking extension of time to lodge a Notice of Appeal was dismissed
  2. 2.Costs awarded to the respondent
  3. 3.The ruling applies mutatis mutandis to Civil Application Nos. E064 of 2021, E065 of 2021 and E066 of 2021

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 47
  • Limitation of Actions ActSection 27
  • Regulation of Wages and Conditions of Employment Actnull

Cases cited (7)

  • Leo Sila Mutiso vs Rose Wangari Mwangi
    CA No. Nai 255/97
  • Julius Kamau Kithaka vs Waruguru Kithaki & 2 Others
    CA No. 14/2013
  • Imperial Bank (IR) & Anor vs Alnashir Popat and Others
    CA 395/2017
  • Paul Wanjohi Methane v Duncan Gichane Mathenge
    [2013] eKLR
  • Nicholas Kiptoo Korir Arap Salat vs IEBC
    [2014] eKLR
  • Catherine Njoguini Kenya & 2 Others vs Commercial Bank of Africa
    Civil Appeal No. Nai 366/09
  • Athuman Nasura Juma v Afwa Mohammed Ramadhan
    CA 227/15
On appeal from
Employment and Labour Relations Court
Kisumu ELRC Cause No. 207 of 2014
Jurisdiction invoked
Rules 4 & 47 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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Later judgments citing this (4)

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

Cite this brief

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Cite this brief

Caselaw, "George Ochieng Onyango v Chemilil Sugar Company [2021] KECA 390 (KLR)", Case Analysis (2021). Civil Application No. E063 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/390/eng@2021-07-23

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