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Court of AppealAllowedCivil Application E438 of 2021· [2022] KECA 762 (KLR)

Warui v Office of the Auditor General & another

Court of Appeal
24 June 2022
FSF. Sichale
1,435 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a worker to appeal five months late, accepting bereavement, illness and Covid-19 as good reasons for the delay.

What this practically means

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Executive summary

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This is a ruling by Sichale JA sitting as a Single Judge of the Court of Appeal at Nairobi on an unopposed motion dated 7th December 2021 by Christopher Warui seeking extension of time to file and serve a Notice of Appeal against a ruling of Nzioka wa Makau J of 29th June 2021 in Nairobi ELRC Cause No. E662 of 2020, in which the applicant's claim - arising from his treatment by the Office of the Auditor General and the Director of Pensions after 35 years of service - was struck out. The application was brought under Article 159 of the Constitution, Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 41, 42, 43 and 47 of the Court of Appeal Rules. Counsel for the applicant attributed the delay of about 161 days to two bereavements, illness with Covid-19 symptoms requiring treatment and isolation, and the file not being brought to her attention on her return. Applying the settled Fakir Mohamed principles, the court held the delay was not inordinate, deliberate or unreasonable given the explanations supported by evidence; the reasons were reasonable and plausible; the annexed draft memorandum raised issues worthy of consideration by a full bench; and the applicant would be greatly prejudiced as his right of appeal would be completely shut out, the respondents having not responded. The motion was granted as prayed, with the applicant to file and serve the Notice of Appeal, Memorandum of Appeal and Record of Appeal within 30 days of obtaining certified copies of proceedings, failing which the orders would stand vacated. Costs of the motion were made to abide the outcome of the intended appeal.

Key legal issues

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01

Extension of time under Rule 4 of the Court of Appeal Rules

Holding

A delay of about 161 days was not inordinate given bereavements, illness and Covid-19 isolation of counsel; the reasons were reasonable and plausible, the appeal arguable, and no prejudice shown by the unresponsive respondents.

Reasoning

The Single Judge applied the settled Fakir Mohamed factors: length of delay, reason for delay, arguability, and prejudice. Counsel's affidavit evidence of two bereavements, illness and Covid-19 isolation, plus the file being mislaid in her absence, explained the delay. The draft memorandum raised issues worthy of consideration, and the respondents filed no response, so no prejudice was demonstrated.

Legal principles established

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  • The Court has wide unfettered discretion under Rule 4 to extend time, to be exercised judiciously on relevant factors including period and reason for delay, arguability and prejudice.

Court orders

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  1. 1.The applicant's motion dated 7th December 2021 is granted as prayed
  2. 2.Leave granted to file and serve the letter requesting proceedings out of time
  3. 3.Time enlarged for filing and serving the Notice of Appeal, Memorandum of Appeal and Record of Appeal
  4. 4.The applicant shall file and serve the Notice of Appeal, Memorandum of Appeal and Record of Appeal within 30 days of obtaining certified copies of proceedings, failing which the orders shall stand vacated
  5. 5.Costs of the motion shall abide the outcome of the intended appeal

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159
  • Appellate Jurisdiction ActSections 3, 3A and 3B
  • Court of Appeal RulesRules 4, 41, 42, 43 and 47

Cases cited (1)

  • Fakir Mohamed vs. Joseph Mugambi & 2 others
    C.A. No. NAI. 332 of 2004

    Settled factors guiding the Rule 4 discretion: delay, reasons, arguability, prejudice and other relevant factors.

On appeal from
Employment and Labour Relations Court
Nairobi ELRC Cause No. E662 of 2020
Jurisdiction invoked
Article 159 of the Constitution of Kenya 2010; Sections 3, 3A and 3B of the Appellate Jurisdiction Act; Rule 4 of the Court of Appeal Rules (Single Judge)

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, "Warui v Office of the Auditor General & another", Case Analysis (2022). Civil Application E438 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/762/eng@2022-06-24

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