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Court of AppealAllowedCivil Application 41 of 2020· [2022] KECA 637 (KLR)

Kassim Abdulatiff Mohamed v Barclays Bank of Kenya Limited

Court of Appeal
8 July 2022
1,397 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a litigant two extra months to appeal, ruling that Covid-19 court disruptions excused the delay.

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 Mombasa (Nyamweya JA) on an application under Rule 4 of the Court of Appeal Rules for extension of time to file and serve a Notice of Appeal against a ruling of the Employment and Labour Relations Court at Mombasa (Rika J.) dated 12th March 2020 in Mombasa ELRC Cause No 739 of 2016, in which the ELRC had varied a consent judgment. The Notice of Appeal was due by 26th March 2020 but the application was lodged on 27th May 2020, a delay of two months. The Applicant's advocate attributed the delay to the closure of courts and his offices following the Chief Justice's orders at the outbreak of the Covid-19 pandemic. The Respondent opposed, relying on the practice directions permitting online filing and contending that no Notice of Appeal or letter to the Deputy Registrar had been served. Applying the principles in Leo Sila Mutiso v Rose Hellen Wangare Mwangi, the court held that the delay was adequately explained by the pandemic's disruption of judicial operations in their early stages and was not inordinate; that Rule 4 does not require a Notice of Appeal to be filed and served before an extension application; that the draft memorandum raising variation of a consent judgment showed plausible grounds of appeal; and that any prejudice to the Respondent could be mitigated. The application was allowed with fourteen days to file and serve the Notice of Appeal, but costs were awarded to the Respondent.

Key legal issues

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01

Whether the Covid-19 pandemic excused the two-month delay in filing the Notice of Appeal

Holding

The delay was adequately explained by the pandemic's disruption of court operations in its early stages and was not inordinate.

Reasoning

The court took judicial notice of the Covid-19 pandemic and the disruption it caused to judicial system operations before the practice directions identified by the Respondent were put in place and became fully operational. The two-month delay between 26th March 2020 and 27th May 2020 was therefore excusable in the circumstances.

02

Whether the Notice of Appeal had to be filed and served before applying for extension of time

Holding

No; Rule 4 imposes no such requirement, and timelines for steps in an appeal run once a Notice of Appeal is competently before the Court.

Reasoning

The Respondent argued the Applicant had taken no steps and had not served the Notice of Appeal or the letter to the Deputy Registrar. The court held there is no specific Rule 4 requirement of prior filing and service, so this could not defeat the application.

03

Whether the intended appeal had plausible grounds

Holding

The draft memorandum of appeal raised the variation of a consent judgment by the ELRC as the main ground, satisfying the plausibility threshold.

Reasoning

At the extension stage the applicant need only demonstrate plausible grounds of appeal, not their merit. The draft memorandum raised variation of a consent judgment in the impugned ELRC ruling as the main ground, and prejudice to the Respondent could be mitigated by available interventions.

p. 3

Legal principles established

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  • The factors for extension of time under Rule 4 are the length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent.
  • There is no requirement under Rule 4 that a Notice of Appeal be filed and served before an application for extension of time; timelines for steps in an appeal run once a Notice of Appeal is competently before the Court.
  • On chances of success at the extension-of-time stage, the applicant need only show plausible grounds of appeal, not their merit.

Court orders

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  1. 1.Extension of time granted to file and serve a Notice of Appeal within fourteen days of the date of the ruling against the ELRC ruling dated 12th March 2020
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal Rules, 2010Rule 75(2)
  • Court of Appeal Rules, 2022Rule 77(2)

Cases cited (6)

  • LSG Lufthansa Service Europa/Afrika GmBH & Another vs Eliab Muturi Mwangi (practicing in the name and style of Muturi Mwangi & Associates Advocates)
    (2019) eKLR

    Delay of 30 days found not inordinate

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

    Delay of three months found not inordinate

  • Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commissions & 7 others
    [2013] eKLR

    Principles guiding a single Judge in exercising discretion to extend time

  • County Government of Mombasa vs Kooba Kenya Limited
    [2019] eKLR

    Principles guiding extension of time discretion

  • Abdul Azizi Ngoma vs Mungai Mathayo
    [1976] KLR 61

    Discretion under rule 4 arises only after sufficient reason is established

  • Leo Sila Mutiso v Rose Hellen Wangare Mwangi
    Civil Application No Nai 255 of 1997 (ur)

    Statement of the principles governing extension of time under Rule 4

On appeal from
Employment and Labour Relations Court at Mombasa
Mombasa ELRC Cause No 739 of 2016
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, "Kassim Abdulatiff Mohamed v Barclays Bank of Kenya Limited", Case Analysis (2022). Civil Application 41 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/637/eng@2022-07-08

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