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Court of AppealDismissedNot stated in the judgment (Notice of Motion dated 5th November, 2021)· [2022] KECA 138 (KLR)

Marianne J. Kitany v Chief of Staff and Head of Public Service & 2 others

Court of Appeal of Kenya
18 February 2022
2,607 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant misled the court about her own lawyer's role in settling the case.

What this practically means

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Executive summary

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This is a single-judge (R. N. Nambuye, JA) ruling of the Court of Appeal at Nairobi, delivered on 18th February, 2022, on a Notice of Motion dated 5th November, 2021 seeking extension of time under Rule 4 of the Court of Appeal Rules to file and serve a memorandum of appeal out of time, and deeming of a notice of appeal filed on 26th June, 2021. The applicant, aggrieved by a judgment of Nzioka wa Makau, J. delivered on 2nd June, 2021 in an employment dispute against the Office of the Deputy President, blamed her previous advocate's departure from the firm for the failure to regularise the appellate process. The court adopted the seven Salat factors from the Supreme Court, narrowing them to length of delay, reason for delay, arguability and prejudice. Although the delay of about five months was shorter than the twenty months in George Mwende Muthoni, the court found the explanation misleading: documents showed that the very advocate who filed the application had pursued compliance with the judgment, and the decretal sum was paid by the 1st respondent on 29th June, 2021. That assertion went unrebutted, drawing an adverse inference of lack of candour and unclean hands. Arguability was satisfied but did not compel relief, and the court held the 1st respondent would suffer prejudice. The application was dismissed with costs to the 1st respondent. The decision is an interlocutory discretionary ruling by a single judge; it is not a panel judgment on appeal and does not disturb the decision of the High Court.

Key legal issues

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01

Length of the delay

Holding

A delay of five months and about five days was less than the twenty-month delay in George Mwende Muthoni, but satisfaction of that factor alone was insufficient

Reasoning

The court applied the benchmark in George Mwende Muthoni, where twenty months' unexplained delay led to refusal. The present delay of roughly five months was comparatively short. However, the court stressed that this single prerequisite must be considered together with the other Salat factors before any relief can be granted.

p. 4
02

Reason for the delay and candour of the applicant

Holding

The blame placed on advocates was misleading: the same advocate who filed the application had pursued compliance with the judgment and received payment of the decretal sum on the applicant's behalf, and this was unrebutted

Reasoning

The 1st respondent produced documents showing Sheila Cherono forwarded clearance documents, the decree and bank details, and payment was made by voucher of 29th June, 2021. The applicant did not rebut this, warranting an adverse inference of lack of candidness and unclean hands, disentitling her to equitable relief.

p. 4
03

Arguability of the intended appeal

Holding

The draft memorandum satisfied the threshold for arguability notwithstanding its ultimate outcome, but arguability alone does not compel the grant of relief

Reasoning

The court adopted Sammy Mwangi Kiriethe: an arguable ground is one that is bona fide and warrants interrogation, not one that must succeed. The draft memorandum met this low threshold, yet because other prerequisites failed, arguability could not rescue the application.

p. 5
04

Prejudice to the respondent

Holding

The 1st respondent had already satisfied the decree at the instigation of the applicant's own advocate, and would suffer prejudice if dragged into appellate litigation

Reasoning

The respondent's assertion that it had complied with the judgment after the applicant's advocate demanded settlement was uncontroverted. The court therefore found the respondent would suffer prejudice in the uncontroverted circumstances, a decisive factor against extending time.

p. 5

Legal principles established

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  • Extension of time is an equitable discretion, not a right, guided by the Salat factors: length of delay, reason for delay, arguability, prejudice, absence of undue delay and public interest
  • Sections 1A, 1B, 3A and 3B of the Civil Procedure Act do not apply to the exercise of the Court of Appeal's jurisdiction; Rule 4 of the Court of Appeal Rules is the proper provision
  • An arguable ground of appeal need not necessarily succeed but must be bona fide and warrant the court's interrogation

Court orders

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  1. 1.The Notice of Motion dated 5th November, 2021 is dismissed
  2. 2.Costs of the application to the 1st respondent
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time); the motion's invocation of 'Order 50 of the Constitution' was corrected to Article 50 of the Constitution, and sections 1A, 1B, 3A and 3B of the Civil Procedure Act were held inapplicable to this Court

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, "Marianne J. Kitany v Chief of Staff and Head of Public Service & 2 others", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 5th November, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/138/eng@2022-02-18

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