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Court of AppealDismissedCivil Application 136 of 2021· [2022] KECA 820 (KLR)

Kegicha v National Police Commission

Court of Appeal
13 May 2022
1,103 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a two-year appeal delay because the applicant gave contradictory, unconvincing reasons for missing the deadline.

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 Kisumu on an application dated 27th September 2021 by Josephine Nyakara Kegicha for extension of time to file and serve a Record of Appeal against the judgment of the Employment and Labour Relations Court at Kisumu (Mathews N. Nderi J) delivered on 7th March 2019 in Kisumu ELRC Petition No. 18 of 2018. The applicant, a former litigant against the National Police Commission, attributed the delay first to lack of notice of the judgment date, and in her supporting affidavit to financial inability to raise filing fees. The respondent's Chief Executive, Joseph V. Onyango, swore that the applicant's Advocate was present in court on 28th February 2019 when the judgment date was announced, and that no explanation was offered for the over two-year delay between filing the Notice of Appeal on 18th March 2019 and the application. Applying Rule 4 of the Court of Appeal Rules and the factors in Leo Sila Mutiso v Rose Hellen Wangari Mwangi (1999) 2 EA 231, Mumbi Ngugi JA found the applicant's averments contradictory and controverted, concluded she had not given plausible reasons and appeared intent on deceiving the Court, and expressed serious reservations about the appeal's chances of success. The application was dismissed with costs to the respondent. The decision below was not disturbed; the intended appeal was simply not allowed to proceed for want of an extension of time.

Key legal issues

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01

Whether the delay of over two years was satisfactorily explained

Holding

The delay was not plausibly explained; the applicant's reasons were contradictory and controverted by the respondent's evidence.

Reasoning

The applicant first claimed neither she nor her Advocate knew the judgment date, yet her own averments show a Notice of Appeal was filed on 18th March 2019 and proceedings obtained by 15th April 2019. She then advanced impecuniosity, raised only in September 2021. The respondent's evidence showed her Advocate was present when the judgment date was announced. The court found the applicant intent on deceiving it.

p. 2
02

Whether the discretion under Rule 4 should be exercised in the applicant's favour

Holding

The discretion was refused on the reason-for-delay factor; the court also expressed serious reservations about the appeal's chances of success.

Reasoning

Applying the Leo Sila Mutiso factors, the court found no basis to exercise its discretion given the inordinate, unexplained delay. It declined to consider the merits in detail but noted serious reservations about the possibility of success after reading the trial decision and grounds of appeal.

p. 2

Legal principles established

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  • In an extension-of-time application the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.The application dated 27th September 2021 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (1)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    (1999)2 EA 231

    Factors for exercising discretion to extend time for appealing

On appeal from
Employment and Labour Relations Court at Kisumu
Kisumu ELRC Petition No. 18 of 2018
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

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, "Kegicha v National Police Commission", Case Analysis (2022). Civil Application 136 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/820/eng@2022-05-13

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