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Court of AppealAllowedCivil Application E431 of 2021· [2022] KECA 376 (KLR)

Wanjohi & another v Barclays Bank of Kenya Limited

Court of Appeal
25 February 2022
SKS. ole Kantai
812 words in judgment
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The bottom line

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Kenya's Court of Appeal let two dismissed employees appeal late because the court itself delayed supplying them with the trial proceedings.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi (S. ole Kantai, JA) on an unopposed application under Rule 4 of the Court of Appeal Rules for extension of time to file a record of appeal. The applicants, Douglas Wakiihuri Wanjohi and Joseph Gicheha Wanyenji, had two claims for unlawful and unfair termination dismissed by the Employment and Labour Relations Court (Nzioki wa Makau, J.) on 30 June 2021. They filed a notice of appeal on 6 July 2021 and applied for typed proceedings on 5 July 2021. The proceedings were only supplied on 12 November 2021, by which time the 60-day period for filing the record of appeal had expired; a Certificate of Delay was issued by the ELRC on 24 November 2021. The court applied the well-established Rule 4 principles summarised in Fakir Mohamed v Joseph Mugambi & 2 Others, noting the non-exhaustive list of relevant factors including the period and reason for delay, the chances of the appeal succeeding, and prejudice to the respondent. Finding that the delay was attributable to the late supply of proceedings rather than the applicants, and that no replying affidavit or submissions were filed by the respondent, the judge allowed the application and directed that the record of appeal be filed within 30 days. No order was made on costs. The ruling does not disturb the ELRC judgment; it merely opens the door to a substantive appeal.

Key legal issues

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01

Whether extension of time to file a record of appeal should be granted where the delay was caused by the trial court's late supply of proceedings and judgment

Holding

Extension granted; the delay was not attributable to the applicants, who filed a notice of appeal in time and promptly requested proceedings, as confirmed by the Certificate of Delay.

Reasoning

The court applied the settled Rule 4 principles from Fakir Mohamed v Joseph Mugambi. The applicants filed their notice of appeal within the required time and requested proceedings the day before. Proceedings were only supplied on 12 November 2021, after the 60-day period had expired, and a Certificate of Delay confirmed this. The delay was therefore not inordinate and the intended appeal was said to have merit.

p. 2

Legal principles established

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  • Extension of time under Rule 4 is discretionary and governed by relevant, non-exhaustive factors including period and reason for delay, chances of appeal succeeding, and prejudice to the respondent.

Court orders

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  1. 1.Leave/extension of time granted to file the record of appeal out of time
  2. 2.Record of Appeal to be filed within 30 days of 25 February 2022
  3. 3.No order on costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (5)

  • Fakir Mohamed v Joseph Mugambi & 2 Others
    Civil Application No. 332 of 2004

    Summary of principles governing extension of time under Rule 4

  • Mutiso v Mwangi
    Civil Application No. NAI. 255 of 1997 (ur)

    Relevant factors in extension of time applications

  • Mwangi v Kenya Airways Limited
    [2003] KLR 496

    Relevant factors in extension of time applications

  • Major Joseph Mwereri Igweta v Murika Methare & Attorney General
    Civil Application No. NAI 8 of 2000 (ur)

    Relevant factors in extension of time applications

  • Murai v Wainaina (No. 4)
    1982 KLR 38

    Relevant factors in extension of time applications

On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC Cause Nos. 833 & 834 of 2019
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time to file record of appeal)

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, "Wanjohi & another v Barclays Bank of Kenya Limited", Case Analysis (2022). Civil Application E431 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/376/eng@2022-02-25

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