Irene Wairimu Gachie v Jetlak Foods Limited
The bottom line
#Kenya's Court of Appeal gave a former employee more time to file her appeal because the court registry's delay — not hers — caused it.
What this practically means
#Executive summary
#Key legal issues
#Factors governing extension of time under Rule 4
The court considers the length of and reasons for delay, arguability of the intended appeal, and prejudice to the respondent; on the facts the delay was explained by the ELRC registry's late supply of proceedings, the grounds were arguable, and the unopposed application caused no prejudice.
The court applied the Salat principles, noting the applicant timely lodged a notice of appeal and bespoked proceedings on 19 November 2018. Proceedings were only paid for on 19 September 2019 and a certificate of delay issued on 31 October 2019. The twelve proposed grounds touched on leave allowance, pension, service pay and quantum of damages, and were held to warrant the Court's interrogation. The respondent did not oppose, so no prejudice arose.
Effect of the proviso to Rule 82 on computation of the 60-day period
Where an appellant bespeaks proceedings within thirty days and serves the request on the respondent, time certified by the registrar for preparation of the copy is excluded, and a certificate of delay suffices to exclude delay beyond sixty days.
Relying on Charles Wanjohi Wathuku v Githinji Ngure & Another as restating John Mutai Mwangi & 26 Others v Mwenja Ngure & 4 Others, the court confirmed that the strict 60-day timeline under Rule 82 is tempered by the proviso where the registry's delay in typing proceedings prevents preparation of the record, as certified by a certificate of delay.
Legal principles established
#- Extension of time is not a right but an equitable, discretionary remedy, and the applicant bears the burden of laying a basis for it.
- An arguable appeal need not be one that must succeed; a single bona fide arguable ground suffices.
- Under the proviso to Rule 82, time certified by the registrar as required to prepare proceedings is excluded from the 60-day period for instituting an appeal where proceedings were bespoken within thirty days.
Court orders
#- 1.The applicant has thirty (30) days from the date of the delivery of the ruling to lodge and serve the record of appeal within the requisite timeline stipulated in the Rules for such service.
- 2.Costs of the application to abide the outcome of the intended appeal.
- On appeal from
- Employment and Labour Relations Court
- Nairobi ELRC Cause No. 1540 of 2013
- Jurisdiction invoked
- Rules 4 and 82 of the Court of Appeal Rules (in-chambers discretionary jurisdiction to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Irene Wairimu Gachie v Jetlak Foods Limited", Case Analysis (2021). Civil Application No. 388 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/664/eng@2021-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.