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Court of AppealDismissedCivil Application No. 60 of 2021· [2021] KECA 446 (KLR)

Peter Dan Oruko v Chemelil Sugar Co. Ltd [2021] KECA 446 (KLR)

Court of Appeal of Kenya
9 July 2021
ASAsike-Makhandia
1,863 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 applicant's explanation for missing the deadline was untrue, proving honesty is essential in such applications.

What this practically means

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Executive summary

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This is a single-judge in-chambers ruling of the Court of Appeal at Kisumu (Asike-Makhandia, JA) on a motion under Rules 4 and 75 of the Court of Appeal Rules seeking extension of time to lodge a notice of appeal out of time. The applicant, the claimant in a test suit against Chemelil Sugar Co. Ltd, had his claim dismissed by the Employment & Labour Relations Court at Kisumu (S. Radido, J.) on 24 March 2021 on a limitation preliminary objection, the court holding that a contract-based claim should have been filed within six years. The ruling also applied to eight other similar causes. The applicant blamed his former counsel for failing to lodge a notice of appeal within the statutory period expiring on 12 April 2021. The respondent did not respond to the motion. The court restated the Rule 4 principles: the discretion is unfettered but judicial, considering the length of and reasons for the delay, prejudice, the parties' conduct, public interest, and the possible - not definitive - chances of success of the intended appeal. Finding material contradictions between the grounds and the supporting affidavit as to when instructions were given, the judge concluded the applicant never truly instructed counsel and that the explanation was an afterthought lacking candour. The court held the applicant undeserving of the discretion and dismissed the application. The judgment contains an internally contradictory costs sentence. It is not a binding appellate precedent on the merits but illustrates the Rule 4 extension-of-time framework that binds the exercise of discretion in this court.

Key legal issues

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01

Principles governing extension of time under Rule 4 of the Court of Appeal Rules

Holding

The discretion is unfettered but must be exercised judicially, guided by the period of delay, reasons for delay, prejudice to the respondent, conduct of parties, public importance and possible chances of success.

Reasoning

The court adopted the factors in Karny Zaharya and Paul Wanjohi Mathenge: length of delay, reasons for delay, possible prejudice, conduct of parties, balancing interests, public interest, and possible arguability of the appeal. A single judge does not determine merits definitively. The discretion, though unfettered, must be exercised judicially and not on whim, sympathy or caprice.

p. 2
02

Candour of the applicant's explanation for the delay

Holding

The applicant failed to give a truthful and candid explanation; blaming former counsel was an afterthought, disentitling him from the discretion.

Reasoning

The court found contradictions between the grounds in support of the motion (counsel present at delivery of ruling and instructed afterwards) and the supporting affidavit (colleagues visiting counsel's office on 25 March 2021 to give instructions). It concluded the applicant never really instructed counsel to lodge an appeal, and the blame cast on counsel was an afterthought after time had lapsed.

p. 2

Legal principles established

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  • Extension of time under Rule 4 is not automatic; the discretion is unfettered but must be exercised judicially, considering the length of and reasons for the delay, prejudice to the respondent, the conduct of the parties and whether the intended appeal is arguable - and the applicant bears the burden of explaining the delay truthfully and candidly.
  • A single judge does not definitively determine the merits of an intended appeal; the chances-of-success consideration is prefixed with 'possibly'.

Court orders

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  1. 1.The application for extension of time to file a notice of appeal out of time is dismissed

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75
  • Regulation of Wages and Conditions of Employment Act

Cases cited (3)

  • Karny Zaharya & another v. Shalom Levi
    [2018] eKLR
  • Paul Wanjohi Mathenge v. Duncan Gichane Mathenge
    [2013] eKLR
  • Athuman Nusura Juma v. Afwa Mohamed Ramadhan
    CA No. 227 of 2015 (UR)
On appeal from
Employment & Labour Relations Court at Kisumu
ELRC No. 206 of 2014
Jurisdiction invoked
Rule 4 and Rule 75 of the Court of Appeal Rules (extension of time to file notice of appeal out of time)

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, "Peter Dan Oruko v Chemelil Sugar Co. Ltd [2021] KECA 446 (KLR)", Case Analysis (2021). Civil Application No. 60 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/446/eng@2021-07-09

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