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Court of AppealDismissedCivil Application 042 of 2022· [2022] KECA 722 (KLR)

Elaki v Attorney General

Court of Appeal
22 July 2022
887 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to excuse a 16-month delay in filing an appeal, confirming that extension of time is a privilege, not a right.

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 (K. M'Inoti, JA) on a motion by Jacob Buhungi Elaki for extension of time to appeal out of time against the judgment of the Employment and Labour Relations Court (Wasilwa, J.) delivered on 8th October 2020 in ELRC App. No. 50 of 2019. The application was scanty: neither the subordinate court judgment nor the ELRC judgment was on record, so the court could not gauge public interest, chances of success or prejudice. The notice of appeal, prepared the day after judgment, was only filed on 7th December 2021 after the court file allegedly went missing, and the deeming application came on 16th February 2022. Applying rule 75(2) of the Court of Appeal Rules, which requires a notice of appeal within 14 days, the court held the onus was on the applicant to explain a delay of one year and four months. Relying on the Supreme Court's decision in Nicholas Kiptoo arap Korir Salat v IEBC, it reiterated that extension of time is not a right but a discretionary remedy for a deserving party. The Covid-19 excuse failed because courts operated online and the notice was itself filed online; the alleged loss of the court file was unsubstantiated. Even accepting the excuses, the applicant delayed a month to file the notice and two more months to seek deeming. Citing Visram, JA in Margaret Muthoni Muchiga v Esther Kamori Gichohi, the court stressed that litigation must end. The application was dismissed with no orders on costs.

Key legal issues

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01

Whether the delay of one year and four months in filing the notice of appeal was adequately explained

Holding

The delay was inordinate and unexplained; Covid-19 did not excuse it since courts operated online, and no evidence substantiated the alleged loss of the court file

Reasoning

The court found that courts operated online throughout the pandemic and the notice of appeal was itself filed online, undermining the Covid-19 excuse. No letter to the Registrar evidenced the alleged lost file. Even accepting the excuses, the applicant took a month after the file resurfaced in November 2021 to file the notice, and a further two months to seek deeming, which was inordinate.

p. 2
02

Whether the application was sufficiently supported to enable the court to assess extension-of-time considerations

Holding

The application was woefully scanty; neither the subordinate court judgment nor the ELRC judgment was on record, making it impossible to gauge public interest, chances of success or prejudice

Reasoning

The supporting affidavit sworn by the applicant's advocate did not fill the gaps. Without the underlying judgments the court could not determine whether the intended appeal was frivolous or had chances of success, or the likely prejudice to either party, factors drawn from the Mutiso and Fakir Mohamed line of authorities.

p. 1

Legal principles established

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  • Extension of time is a discretionary remedy available only to a deserving party, and an applicant must place plausible material before the court explaining non-compliance with prescribed rules
  • The onus lies on the applicant for extension of time to explain delay in filing a notice of appeal within the prescribed 14 days

Court orders

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  1. 1.The application for extension of time to appeal out of time is dismissed with no orders on costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 75(2)

Cases cited (4)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    CA No. Nai. 255 of 1997

    Considerations for extension of time: public interest, chances of success, prejudice

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

    Considerations for extension of time

  • Nicholas Kiptoo arap Korir Salat v. IEBC & 7 Others
    [2014] eKLR

    Extension of time is not a right; discretionary remedy for a deserving party

  • Margaret Muthoni Muchiga v. Esther Kamori Gichohi
    CA No. Nai. 117 of 2009

    Litigation must come to an end; rules must be followed

On appeal from
Employment and Labour Relations Court at Nairobi
ELRC APP. No. 50 of 2019
Jurisdiction invoked
Inherent discretion to extend time under the Court of Appeal Rules; rule 75(2) of the Court of Appeal Rules on filing notice of appeal within 14 days

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, "Elaki v Attorney General", Case Analysis (2022). Civil Application 042 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/722/eng@2022-07-22

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