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Court of AppealAllowedCivil Application 197 of 2020· [2022] KECA 1049 (KLR)

Tanui v Phillips Pharmaceuticals Limited

Court of Appeal
23 September 2022
550 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal let a worker appeal late because his lawyer failed to tell him about the judgment in time.

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 (D. K. Musinga, JA) on an application for extension of time to file a notice of appeal against a judgment of the Employment and Labour Relations Court at Mombasa (N. Ndolo, J) dated 9 April 2020 in E.L.R.C Cause No. 495 of 2018. The applicant, whose advocate failed to notify him of the judgment until 25 April 2020, argued that the delay was not of his making, noting that the advocate on record declined to pursue leave to appeal and that Covid-19 movement restrictions made it difficult to obtain new counsel. The respondent opposed, contending the delay was unexplained, the appeal had no chances of success, and it would be prejudiced. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, the court found the delay well explained, the intended appeal not frivolous, and any prejudice to the respondent compensable by costs. The court granted leave to file and serve a notice of appeal within fourteen days, with the costs of the application to abide the outcome of the intended appeal. The ruling does not disturb the decision below; it merely opens the door to an appeal.

Key legal issues

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01

Whether the delay in filing the notice of appeal was excusable

Holding

The delay was well explained: the applicant's advocate failed to notify him of the judgment until 25 April 2020, and Covid-19 restrictions made it difficult to obtain new counsel after the advocate on record declined further instructions.

Reasoning

The court accepted that the applicant was not personally to blame. His advocate only informed him of the judgment by WhatsApp message on 25 April 2020, and the prevailing Covid-19 movement restrictions made it difficult to instruct new counsel, justifying the filing on 12 June 2020.

02

Whether the intended appeal is arguable

Holding

The intended appeal is not frivolous; the applicant's supplementary affidavit sets out arguable grounds of appeal.

Reasoning

Applying the Mutiso principles, the court found the grounds in the supplementary affidavit sufficient to show the appeal was not frivolous, satisfying the arguability limb of the extension-of-time test.

03

Whether the respondent would suffer prejudice

Holding

Any prejudice to the respondent can be compensated by an award of costs.

Reasoning

The court held that the respondent would not suffer prejudice beyond what costs could compensate, completing the third limb of the extension-of-time principles and supporting the grant of leave.

Legal principles established

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  • Extension of time applications are governed by settled principles including length of and explanation for delay, arguability of the appeal, and absence of uncompensatable prejudice.

Court orders

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  1. 1.Leave granted to the applicant to file and serve a notice of appeal within fourteen (14) days from the date of delivery of the ruling
  2. 2.Costs of the application to abide the outcome of the intended appeal

Authorities

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Cases cited (1)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231

    Settled principles guiding extension of time applications

On appeal from
Employment and Labour Relations Court of Kenya at Mombasa
E.L.R.C Cause No. 495 of 2018
Jurisdiction invoked
Inherent discretion of the Court of Appeal to extend time for filing a notice of appeal (Court of Appeal Rules)

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, "Tanui v Phillips Pharmaceuticals Limited", Case Analysis (2022). Civil Application 197 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1049/eng@2022-09-23

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