Elaki v Attorney General
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the delay of one year and four months in filing the notice of appeal was adequately explained
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
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.
Whether the application was sufficiently supported to enable the court to assess extension-of-time considerations
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
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.
Legal principles established
#- 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
#- 1.The application for extension of time to appeal out of time is dismissed with no orders on costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.