Aloice Otieno Arum v Chemilil Sugar Company Ltd [2021] KECA 408 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the applicant's explanation for the delay blamed his lawyer untruthfully.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in lodging the notice of appeal was satisfactorily explained
The applicant's account was contradictory and untruthful; blaming former counsel was an afterthought, so the delay was not satisfactorily explained
The applicant asserted in the grounds that counsel was present at delivery of judgment and was immediately instructed to lodge an appeal, yet in the supporting affidavit deposed that colleagues only visited counsel on 25th March 2021 to give instructions. The court found this contradiction fatal to the applicant's candour and concluded he never truly instructed counsel, making the blame on counsel an afterthought after realizing time had lapsed.
Whether the intended appeal was arguable
Without making a definitive finding, the judge entertained doubts that the applicant would mount an arguable appeal, given the impugned judgment turned on limitation
The trial court's judgment turned on whether the claim was statute-barred under section 90 of the Employment Act. The single judge, applying the 'possibly arguable' standard, declined to make a definitive finding on merits but expressed doubts about arguability. This weighed against extending time, especially given the applicant's failure of candour on the reason for delay.
Legal principles established
#- Extension of time is not automatic; the discretion under Rule 4 is unfettered but must be exercised judicially, guided by the length of and reasons for delay, prejudice to the respondent, conduct of the parties, public interest and whether the intended appeal is arguable
- An applicant for extension of time bears the burden of explaining the delay truthfully and candidly to the court's satisfaction
- A single judge must not definitively determine the merits of an intended appeal when assessing chances of success; the consideration is prefixed with 'possibly'
Court orders
#- 1.The motion dated 29th April 2021 seeking extension of time to file a notice of appeal is dismissed
- 2.Costs of the application awarded to the respondent
- 3.The ruling applies mutatis mutandis to Civil Application Numbers E068 of 2021 and E075 of 2021
- On appeal from
- Employment & Labour Relations Court at Kisumu
- ELRC No. 209 of 2014
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (with reference to rule 75)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aloice Otieno Arum v Chemilil Sugar Company Ltd [2021] KECA 408 (KLR)", Case Analysis (2021). Civil Application No. E067 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/408/eng@2021-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.