Shield Assurance Company Limited v Rahab Wothaya Esiromo & 6 others [2021] KECA 504 (KLR)
The bottom line
#The Court of Appeal refused to forgive a 45-month filing delay, showing Kenyan courts punish unexplained delay even where Covid-19 closures offer partial excuse.
What this practically means
#Executive summary
#Key legal issues
#Extension of time under Rule 4
The application for extension of time was dismissed because the delay was inordinate and unexplained.
The court reiterated the settled Rule 4 factors: length of delay, reason for delay, chances of success and prejudice to the respondent. The delay from 15th December 2016 (expiry of the 60-day period under Rule 82(1), since the proceedings request was not shown to have been served on the respondents) amounted to 45 months. Apart from the Covid-19 registry closure in 2020, no explanation covered the prolonged earlier delay; the material on chances of success was inadequate, and the respondents, whose employment was terminated over ten years earlier, remained prejudiced.
Computation of delay under Rule 82
Since the applicant failed to demonstrate that its request for typed proceedings was served on the respondents, time taken to prepare proceedings could not be excluded, and the 60-day period under Rule 82(1) applied.
Rule 82(2) requires a written application for proceedings, a copy of which is served on the respondent, before an appellant may rely on the proviso to sub-rule (1). The request was not enclosed in the application and the certificate of delay was not attached, so it was impossible to ascertain service. Accordingly the applicant had to file the record within 60 days of the Notice of Appeal, making the delay 45 months.
Legal principles established
#- Under Rule 4 of the Court of Appeal Rules the Court has an unfettered discretion to extend time, to be exercised judiciously having regard to the length of and reason for the delay, the chances of success of the appeal, and prejudice to the respondent.
- An appellant cannot rely on the proviso excluding the time taken to prepare proceedings under Rule 82(1) unless the application for the copy of proceedings was in writing and served on the respondent.
Court orders
#- 1.The Notice of Motion dated 19th September 2020 be and is hereby dismissed with costs to the respondents
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Employment and Labour Relations Court Cause No. 1488 of 2010
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (inherent/appellate discretion to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shield Assurance Company Limited v Rahab Wothaya Esiromo & 6 others [2021] KECA 504 (KLR)", Case Analysis (2021). Civil Application No. E 296 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/504/eng@2021-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.