Union of Kenya Civil Servants v Nyamato & 2 others
The bottom line
#Kenya's Court of Appeal gave a trade union 60 more days to file its appeal, ruling a 55-day delay was excusable.
What this practically means
#Executive summary
#Key legal issues
#Extension of time under Rule 4
A delay of about 55 days was not inordinate and was satisfactorily explained by internal wrangles within the applicant and the court vacation; the extension was granted.
The court applied the Fakir Mohamed principles: length of delay, cause of delay, possibility of the appeal succeeding, and prejudice. The 55-day delay was held not inordinate; internal wrangles after the applicant's elections and the court vacation between 21st December 2021 and 13th January 2022 explained the delay. The draft memorandum of appeal showed an arguable appeal, and prejudice to the applicant if the motion was refused was demonstrated.
Arguability of the intended appeal
The draft Memorandum of Appeal disclosed an arguable appeal worthy of consideration, though the single judge refrained from expressing more to avoid embarrassing the full bench.
In assessing the possibility of the appeal succeeding, the judge examined the annexed draft Memorandum of Appeal and was satisfied it raised arguable issues. The judge expressly cautioned against saying more, recognising that a single judge on a Rule 4 application must not pre-judge the appeal that will later come before the full Court.
Legal principles established
#- The Court has wide and unfettered discretion under Rule 4 to extend time, to be exercised judiciously, considering the length and cause of the delay, the possibility of the appeal succeeding and prejudice to the parties.
Court orders
#- 1.The applicant's motion dated 5th January 2022 is allowed in terms of prayers 2 and 3
- 2.The applicant to file and serve the Notice and Record of Appeal within 60 days from the date of the ruling, failing which the orders shall stand vacated
- 3.Costs of the motion to abide the outcome of the intended appeal
- On appeal from
- High Court
- ELC Case No. 1222 of 2007
- Jurisdiction invoked
- Sections 3, 3A, 3B and 5 of the Appellate Jurisdiction Act (CAP 9) and Rules 4, 42 and 43 of the Court of Appeal Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Union of Kenya Civil Servants v Nyamato & 2 others", Case Analysis (2022). Civil Application E017 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1060/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.