Kassim Abdulatiff Mohamed v Barclays Bank of Kenya Limited
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Covid-19 pandemic excused the two-month delay in filing the Notice of Appeal
The delay was adequately explained by the pandemic's disruption of court operations in its early stages and was not inordinate.
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.
Whether the Notice of Appeal had to be filed and served before applying for extension of time
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.
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.
Whether the intended appeal had plausible grounds
The draft memorandum of appeal raised the variation of a consent judgment by the ELRC as the main ground, satisfying the plausibility threshold.
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.
Legal principles established
#- 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
#- 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.Costs of the application awarded to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.