Co-operative Bank of Kenya Limited v Kennedy Kimaiyo Kiplagat
The bottom line
#Kenya's Court of Appeal granted extra time to file an appeal record, confirming courts will excuse short, well-explained delays in the interest of justice.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of 22 days in filing the record of appeal should be excused under Rule 4 of the Court of Appeal Rules
The reason for the delay - obtaining legible copies of the respondent's pleadings from the registry - was plausible, and the applicant demonstrated the Leo Sila Mutiso parameters, warranting extension of time.
The court applied the settled Rule 4 parameters: length of delay, reason for delay, arguability of the intended appeal, and prejudice to the respondent. The delay of 22 days was attributed to the illegibility of served copies requiring perusal of the court file, which the court found plausible. The draft memorandum raised arguable points on the fairness of termination. Any prejudice to the respondent could be compensated by an award of costs, so it would be wrong to shut the applicant out of the right of appeal.
Whether the intended appeal was arguable
The court was satisfied, without expressing definitive conclusions, that the intended appeal was arguable, as the draft memorandum raised several arguable points including whether the termination of the respondent's employment was unfair, un-procedural, unlawful and unconstitutional.
Relying on Muchugi Kiragu, the court noted that the Rule 4 discretion is unfettered and that extension is properly granted where the intended appeal is arguable and the opponent is not prejudiced. A perusal of the draft memorandum of appeal disclosed arguable points concerning the termination of employment, satisfying this factor without definitive conclusions on merits.
Whether the respondent would suffer prejudice if the extension was granted
Any prejudice to the respondent from prolonging the litigation and delaying enjoyment of the fruits of his judgment could be adequately compensated by an award of costs.
The respondent contended that granting the application would lengthen judicial time and process and frustrate his right to enjoy the fruits of his judicial labour. The court balanced the competing interests of the parties and took the view that in the circumstances an award of costs would adequately compensate the respondent, and granted costs of the motion to him accordingly.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, guided by the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent - factors which are discretionary and non-exhaustive.
- Any delay must be satisfactorily explained; a plausible and satisfactory explanation is the key to the court's discretionary favour.
- A mistake, including the mistake of counsel, does not close the door of justice where the interests of justice so dictate.
Court orders
#- 1.Extension of time for filing the record of appeal granted
- 2.The appeal filed by the applicant on 3rd June, 2019 is deemed as properly filed
- 3.If not already served, the record of appeal to be served on the respondent within seven (7) days from the date of the ruling
- 4.Costs of the motion granted to the respondent
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Co-operative Bank of Kenya Limited v Kennedy Kimaiyo Kiplagat", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/918/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.