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Court of AppealDismissedCivil Application 134 of 2019· [2022] KECA 403 (KLR)

County Government of Murang’a & another (Sued as County Secretary County Government of Murang’a) v Njoroge

Court of Appeal
4 March 2022
KLDr. K. I. Laibuta
1,257 words in judgment
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The bottom line

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The Court of Appeal refused Murang'a County extra time to appeal because it never showed what grounds the appeal would actually raise.

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 Nyeri (Laibuta, JA) on a Notice of Motion dated 14 August 2019 by Patrick Mukuria, the 2nd applicant, seeking under Rule 4 an extension of time to file an appeal out of time from the judgment of the Employment and Labour Relations Court at Nyeri (Nzioki wa Makau, J.) delivered on 18 February 2019 in ELRC Petition No. 13 of 2017, and under Rule 5(2)(b) a stay of execution pending appeal. The judge confined himself to the extension-of-time limb, the stay limb falling within a 3-Judge bench's jurisdiction. The court first cured procedural defects: although the Notice of Appeal was lodged only by the County Government of Murang'a, it was signed by counsel 'Advocates for the Respondents', which the court read as signing on behalf of both applicants under Rule 75(6), aided by Article 159(2)(d) of the Constitution. Applying the Leo Sila Mutiso principles, the court found the delay sufficiently explained, not inordinate, and no prejudice to the respondent. However, the application was anchored on no draft memorandum of appeal or other material disclosing the grounds of the intended appeal, so arguability could not be established. The Motion was dismissed with no orders as to costs. The decision below was not disturbed; the ruling binds no issue beyond the extension application.

Key legal issues

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01

Whether the Notice of Appeal and Motion cover both applicants

Holding

The notice signed by counsel 'Advocates for the Respondents' cured the defect, and the Motion was presumed made on behalf of both applicants.

Reasoning

Rule 75(1) requires notice in writing by any person desiring to appeal. The notice was lodged by the 1st applicant but signed by counsel for the 'Respondents', which the court read as signing on behalf of the applicants under Rule 75(6), aided by Article 159(2)(d) against procedural technicalities.

p. 2
02

Whether extension of time should be granted under Rule 4

Holding

Dismissed: although delay was explained and not inordinate, and no prejudice shown, the absence of a draft memorandum meant arguability was not demonstrated.

Reasoning

Applying the Leo Sila Mutiso principles, the court found the delay explained, not inordinate, and no prejudice to the respondent. However, arguability is the critical factor, and without a draft memorandum or other material the applicant could not show an arguable appeal, so the application failed.

p. 3

Legal principles established

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  • An applicant under Rule 4 must demonstrate an arguable appeal; without a draft memorandum or material disclosing grounds, arguability cannot be established.

Court orders

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  1. 1.The applicants’ Motion for extension of time is dismissed with no orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75(1)
  • Court of Appeal RulesRule 75(6)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (2)

  • Leo Sila Mutiso v Helen Wangari Mwangi
    [1999] 2 EA p231

    Principles for exercise of discretion under Rule 4: length and reason for delay, chances of success, prejudice.

  • Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited
    2020 eKLR

    Enunciation of the Court's discretion under Rule 4 to extend time to lodge an appeal.

On appeal from
Employment and Labour Relations Court at Nyeri
E.L.R.C Petition No. 13 of 2017
Jurisdiction invoked
Rules 4 and 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "County Government of Murang’a & another (Sued as County Secretary County Government of Murang’a) v Njoroge", Case Analysis (2022). Civil Application 134 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/403/eng@2022-03-04

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