Chase Bank Limited v Diana Moraa Abuta [2021] KECA 945 (KLR)
The bottom line
#Kenya's Court of Appeal refused Chase Bank more time to appeal an unfair dismissal ruling because it could not credibly explain its nine-month delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the period of delay of nine months and four days in seeking extension of time is inordinate
- 2.Whether the applicant has proffered a plausible and satisfactory explanation for the delay
- 3.Whether the intended appeal is arguable
- 4.Whether the respondent would suffer prejudice if extension of time were granted
Key legal issues
#Whether the nine months and four days' delay in seeking extension of time was inordinate
The delay was not so inordinate as to warrant a denial of the Court's discretion, but that finding alone was insufficient to secure relief.
The court compared the delay against cases where 20 months' and 6 months' unexplained delays led to refusals. It held that a finding on the delay factor 'perse' does not automatically warrant relief; it must be considered in conjunction with the other factors required under Rule 4.
Whether the applicant explained the reasons for the delay
No plausible reason was established; the claimed receivership restructuring was unsubstantiated by documentary proof.
No documentation was exhibited confirming the averments about the receivership, moratorium and acquisition by SBM Holdings, nor when instructions were given to the advocate. The belated notice of appeal, lodged six months and three days out of time and never served, further undermined the applicant's position.
Whether the intended appeal is arguable
The draft grounds of appeal, including challenges to the finding on proof of the claim and the order of re-engagement, are arguable.
The intended grounds on the standard of proof, the statutory three-year re-engagement period, the changed legal status of the applicant after acquisition by SBM Holdings, and alleged disregard of evidence were all found arguable notwithstanding that they may not ultimately succeed. However, arguability alone did not guarantee success on the application.
Whether the respondent would suffer prejudice if the extension were granted
The respondent's cited prejudice in being withheld from the fruits of her judgment was found plausible, particularly given the applicant's handling of its appellate process.
The respondent stood to be deprived of the enjoyment of a judgment in her favour finding her termination was without valid reasons and procedurally unfair. The clandestine manner in which the applicant handled its intended appellate process reinforced that prejudice.
Legal principles established
#- Establishment of a single factor in a Rule 4 extension-of-time application (such as a non-inordinate delay) is not of itself sufficient to warrant relief; all relevant factors must be considered together.
- A plausible and satisfactory explanation for delay is the key that unlocks the court's discretionary power under Rule 4, and reasons for delay must be substantiated.
- An arguable appeal need not necessarily succeed; it is one that warrants a response from the opposite party and full interrogation by the Court.
Court orders
#- 1.The applicant's Notice of Motion dated 23rd June 2020 seeking extension of time to file and serve the Notice of Appeal, Memorandum of Appeal and Record of Appeal out of time is dismissed
- 2.Costs of the application are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court
- Kisumu ELRC Cause No. 98 of 2015
- Jurisdiction invoked
- Section 3(1) of the Appellate Jurisdiction Act, Cap 9 and Rule 4 of the Court of Appeal Rules, 2010
Relief refused
#Leave to file and serve Memorandum of Appeal and Record of Appeal out of time, and extension of time for filing and serving the Notice of Appeal, Memorandum of Appeal and Record of Appeal
No plausible reason was proffered for the delay; the notice of appeal was lodged six months and three days out of time in contravention of Rules 75(1) and (2) and never served within the seven days stipulated in Rule 77(1); the restructuring rationale was unsubstantiated; and the respondent would be prejudiced in enjoyment of the fruits of her judgment
Costs
The application is dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In light of the totality of the above assessment and reasoning, I am not satisfied that the applicant’s application has merit. It is accordingly dismissed with costs to the respondent.
A plausible and satisfactory explanation for a delay is the key that unlocks the court’s flow of discretionary power.
I find nothing in the principles that guide the Court in the exercise of its mandate under the Rule 4 of the Court of Appeal Procedures highlighted above that says that establishment of one factor is sufficient to warrant granting relief under the said rule.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
Issues in the judgment
#The judgment inconsistently dates the deadline for filing the notice of appeal, computing it as falling on 2nd November 2019 from '19th September 2020', an apparent typographical error in the date of the decision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chase Bank Limited v Diana Moraa Abuta [2021] KECA 945 (KLR)", Case Analysis (2021). Civil Application No. 76 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/945/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.