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Court of AppealDismissedCivil Appeal E627 of 2021· [2022] KECA 449 (KLR)

Southend Motors Ltd v Amalgamated Union of Kenya Metal Workers

Court of Appeal
18 March 2022
1,110 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to forgive a 10-month appeal delay because the explanation was never sworn on oath, ending Southend Motors' appeal.

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 (M'Inoti, JA) on an application by Southend Motors Ltd for extension of time to file a notice of appeal out of time against a judgment of the Employment and Labour Relations Court (Onyango, J.) delivered on 11 December 2020 in ELRC Petition No. 2232 of 2017. Although the application heading referred to stay of execution, the body sought extension of time. The applicant's 15-paragraph supporting affidavit by its managing director lamented the merits of the impugned judgment but offered no explanation for the delay; the only explanation appeared in written submissions, where an unidentified 'I' took responsibility for inadvertence in failing to file the notice. The court held that an explanation for delay must be in an affidavit, not in submissions by an unidentified person. Applying Fakir Mohamed v Joseph Mugambi, the court found the 10-month delay inordinate given the 14-day requirement under rule 75(2), and noted that filing a notice of appeal is a simple, one-page exercise. Relying on Abdulkadir Athman Salim Elkindy and Rajesh Rughani, it held that advocate inaction is not an excusable mistake and that the advocate whose inadvertence was relied upon was neither disclosed nor sworn an affidavit. The application was dismissed with costs to the respondent. The decision below was not disturbed; the intended appeal was never filed.

Key legal issues

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01

Whether the delay of 10 months in filing the notice of appeal was excusable

Holding

The delay was inordinate and unexplained; the application failed

Reasoning

The judgment was delivered on 11 December 2020 and the application made on 19 October 2021, a 10-month lapse. Rule 75(2) requires a notice of appeal within 14 days. The supporting affidavit lamented the merits of the judgment but said nothing about the delay; the only explanation appeared in submissions by an unidentified person, which cannot be depositions.

p. 2
02

The principles governing extension of time under rule 4

Holding

The discretion is wide and unfettered but must be exercised judiciously, considering delay, reason, chances of success, prejudice and other relevant factors

Reasoning

The court adopted the well-beaten path in Fakir Mohamed v Joseph Mugambi, listing relevant factors: period of delay, reason for delay, chances of the appeal succeeding, prejudice to the respondent, effect on public administration, importance of compliance with time limits, resources of parties and public importance. Delay alone is not fatal if explained, but here there was no explanation.

p. 2

Legal principles established

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  • An explanation for delay in filing an appeal must be made by affidavit, not in submissions by an unidentified person
  • Inordinate delay alone does not disentitle a party to extension of time so long as it is explained
  • Advocate inaction is not an excusable mistake deserving sympathy

Court orders

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  1. 1.The application for extension of time to file the notice of appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 75(2)

Cases cited (3)

  • Fakir Mohamed v. Joseph Mugambi & 2 Others
    CA No. Nai. 332 of 2004

    Factors relevant to the exercise of discretion to extend time under rule 4

  • Abdulkadir Athman Salim Elkindy v Dpp & Another
    Civil Application No. 198 of 2017

    Extension of time is a discretionary remedy available only to a deserving party who must explain the delay

  • Rajesh Rughani v. Fifty Investment Ltd & Another
    [2005] eKLR

    Advocate inaction is not an excusable mistake the Court may consider with sympathy

On appeal from
Employment and Labour Relations Court
ELRC Petition No. 2232 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

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, "Southend Motors Ltd v Amalgamated Union of Kenya Metal Workers", Case Analysis (2022). Civil Appeal E627 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/449/eng@2022-03-18

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