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Court of AppealPartially AllowedCivil Application E093 of 2021· [2022] KECA 993 (KLR)

Road Tainers (MSA) Ltd v Kiminza Munuve

Court of Appeal
23 September 2022
SKS. Gatembu Kairu
1,366 words in judgment
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The bottom line

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Kenya's Court of Appeal let a company appeal late because it never got notice of the judgment, ruling the short delay was excusable.

What this practically means

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Executive summary

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The applicant, Road Tainers (MSA) Ltd, sought leave to appeal out of time against a judgment of the Employment and Labour Relations Court at Mombasa (Ndolo, J.) delivered on 7 October 2021, which found that it had unfairly terminated the respondent's employment and awarded twelve months' salary. The applicant's advocates learned of the judgment only after inquiries at the registry, obtained a copy around 29 October 2021, filed a notice of appeal on 2 November 2021, and brought the present application on 29 November 2021. The application was heard before S. Gatembu Kairu, JA, sitting singly, with no appearance for the respondent despite service. Applying the Supreme Court's principles in Nicholas Kiptoo Arap Salat v IEBC, the judge held that under Rule 75(1) and (2) of the Court of Appeal Rules, 2010 the notice of appeal should have been lodged by 21 October 2021, so time had lapsed before the judgment copy was supplied, rejecting the respondent's contrary contention. Although the applicant did not explain why the application was not presented sooner, the delay was not inordinate; the draft memorandum showed an arguable appeal and no prejudice was demonstrated. The judge distinguished Ready Consultancy Limited v Tima Abdalla, relied on by the respondent for security for costs, as concerning stay of execution rather than extension of time, and declined to order security. The application was allowed in terms of prayer 2, with 45 days to file and serve a compliant record of appeal, and costs in the intended appeal.

Key legal issues

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01

Extension of time under Rule 4

Holding

Delay of roughly three weeks in filing the notice of appeal, occasioned by lack of notice of delivery of judgment, was not inordinate; the intended appeal was arguable and no prejudice was shown

Reasoning

The court applied the Salat principles. The applicant did not receive notice of the judgment's delivery; time had lapsed by the time the judgment was supplied. The notice of appeal was filed days later and the application followed shortly. The draft memorandum showed an arguable appeal and no prejudice was demonstrated.

p. 3
02

Security for costs on extension applications

Holding

Security for costs was refused because the authority cited concerned stay of execution, not extension of time before a single judge

Reasoning

The respondent relied on Ready Consultancy Limited v Tima Abdalla, but that ruling dealt with an application for stay of execution before the full Court, not an extension-of-time application before a single judge, so it offered no basis for ordering security.

p. 3

Legal principles established

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  • The Court's discretion under Rule 4 is unfettered but must be exercised judicially, guided by the Salat principles
  • Under Rule 75(1) and (2) of the Court of Appeal Rules, 2010, a notice of appeal must be lodged within fourteen days of the judgment

Court orders

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  1. 1.Application allowed as prayed in terms of prayer 2 (leave to appeal out of time; notice of appeal filed 2 November 2021 deemed duly filed)
  2. 2.Applicant granted 45 days from delivery of the ruling to file and serve a compliant record of appeal
  3. 3.Costs of the application to be in the intended appeal

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 75(1) and (2)

Cases cited (3)

  • Moroo Polymers Limited vs. Wilfred Kasyoki Willis
    [2019] eKLR

    Relied on by the applicant in support of the extension-of-time application

  • Nicholas Kiptoo Arap Salat vs. Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR

    Principles guiding exercise of discretion to extend time

  • Ready Consultancy Limited vs. Tima Abdalla & 21 others
    [2021] eKLR

    Cited by respondent for security for costs; distinguished as a stay-of-execution case

On appeal from
Employment & Labour Relations Court at Mombasa
ELRC Cause No. 389 of 2018
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010 (extension of 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, "Road Tainers (MSA) Ltd v Kiminza Munuve", Case Analysis (2022). Civil Application E093 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/993/eng@2022-09-23

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