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Court of AppealAllowedCivil Appeal E012 of 2022· [2022] KECA 878 (KLR)

Manyara v Teachers Service Commission

Court of Appeal
10 June 2022
FSF SICHALE
1,168 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 years late because his advocate's negligence, not his own, caused the delay.

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 on an undated motion by Duncan Kaburu Manyara seeking leave to file his appeal out of time against the judgment and decree of Wasilwa, J. of the High Court (ELRC) dated 25 January 2017 in Nairobi ELRC Cause No. 196 of 2013, which had dismissed his employment claim. The applicant attributed the delay to his former advocate's failure to file the appeal despite instructions, and pointed to complaints lodged against that advocate with the Law Society of Kenya and the Advocates Complaints Commission. The respondent filed no response. Sichale, JA restated the settled Rule 4 factors from Fakir Mohamed v Joseph Mugambi & 2 Others: length of and reason for delay, chances of the appeal succeeding, and prejudice to the respondent. Although the delay of more than five years was inordinate, the court accepted the advocate-negligence explanation as plausible and satisfactorily explained. No draft memorandum of appeal was annexed, but the judge declined to assess prospects as a single Judge lest he embarrass the full bench. Prejudice weighed heavily in favour of the in-person applicant, whose right of appeal would otherwise be completely shut out, and Article 159(2)(d) required justice without undue regard to procedural technicalities. The motion was allowed in terms of prayer 2, with 30 days to file and serve the intended appeal, failing which the orders would stand vacated; costs were to abide the outcome of the intended appeal.

Key legal issues

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01

Whether a delay of over five years, attributed to the applicant's advocate, should be excused under Rule 4

Holding

Yes. The delay was inordinate but the reason - the advocate's failure to file despite instructions, evidenced by complaints to the LSK and Advocates Complaints Commission - was plausible, and refusal would shut out an in-person applicant's right of appeal.

Reasoning

The court rehearsed the Fakir Mohamed factors: length of and reason for delay, chances of success, and prejudice. Delay of over five years was acknowledged as inordinate, but the advocate-negligence explanation, corroborated by complaints filed against the advocate, was accepted as plausible. On prospects, no draft memorandum was annexed, but as a single Judge the court declined to prejudge the appeal. Prejudice weighed in the applicant's favour since refusal would extinguish the right of appeal entirely, and Article 159(2)(d) required justice without undue regard to technicalities.

Legal principles established

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  • The factors for extension of time under Rule 4 are settled and non-exhaustive: period and reason for delay, chances of appeal succeeding, prejudice, and related considerations.

Court orders

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  1. 1.The applicant's motion is allowed in terms of prayer 2, granting leave to file the appeal out of time
  2. 2.The applicant to file and serve the intended appeal within 30 days from the date of the ruling, failing which the orders shall stand vacated
  3. 3.The costs of the motion shall abide the outcome of the intended appeal

Authorities

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Legislation

  • Civil Procedure Act CAP 21Sections 1A, 1B & 3A
  • Appellate Jurisdiction Act CAP 9Section 66
  • Civil Procedure Rules 2010Order 50 Rule 6
  • Constitution of Kenya 2010Article 159(2)(d)
  • Court of Appeal RulesRule 4

Cases cited (1)

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

    Restating the settled factors guiding the exercise of discretion under Rule 4 on extension of time.

On appeal from
High Court of Kenya at Nairobi (ELRC)
Nairobi ELRC Cause No. 196 of 2013
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; Sections 1A, 1B & 3A of the Civil Procedure Act; Section 66 of the Appellate Jurisdiction Act; Article 159(2)(d) of the Constitution

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, "Manyara v Teachers Service Commission", Case Analysis (2022). Civil Appeal E012 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/878/eng@2022-06-10

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