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Court of AppealDismissedCivil Application E047 of 2021· [2022] KECA 1083 (KLR)

Marasi v Board of Management, Geturi Mixed Secondary School

Court of Appeal
7 October 2022
PKP. O. Kiage
912 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive a three-year-stalled appeal, warning that blaming your lawyer without evidence of effort will not excuse delay.

What this practically means

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Executive summary

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This is a single-judge Rule 4 ruling of the Court of Appeal at Kisumu (Kiage, JA) on a notice of motion dated November 9, 2020 by Richard Nyaundi Marasi seeking extension of time to serve his notice of appeal and to file and serve a memorandum and record of appeal against the judgment of the Employment and Labour Relations Court at Kisumu (M. Onyango, J.) delivered on June 8, 2017, which dismissed his statement of claim in ELRC Cause No. 357 of 2015. A notice of appeal was lodged in June 2017, but the memorandum and record of appeal were never filed, the applicant attributing this to a communication breakdown with his former advocates. The respondent opposed, contending the delay of over three years was unexplained, that the applicant had not acted in good faith, and noting that the application itself was served only on July 1, 2022, nearly two years after it was filed. Applying the factors in Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees, the court held that the delay was inordinate, that the explanation of a communication breakdown was wholly implausible because the applicant failed to demonstrate any steps taken to prosecute the appeal or to explain the three-year delay in discovering the problem and appointing new advocates, and that the late service of the application further evidenced indolence. The application was dismissed in its entirety with costs to the respondent. The decision below was not disturbed; the intended appeal was not entertained.

Key legal issues

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01

Whether the delay of over three years was reasonably explained

Holding

No - communication breakdown with former advocates was not a reasonable explanation where the applicant took no steps for three years.

Reasoning

The applicant blamed a communication breakdown with former advocates but did not show what steps he took to have the appeal prosecuted, why it took three years to discover the miscommunication, or why he delayed appointing a new advocate. Mere assertion of breakdown does not satisfy the court that the delay was reasonably explained.

p. 2
02

Conduct of the applicant as an indicator of indolence

Holding

The applicant's inaction and the late service of the application itself demonstrated indolence disentitling him to discretion.

Reasoning

The applicant did nothing after filing the notice of appeal and only moved three years later. The application dated November 9, 2020 was served on the respondent on July 1, 2022, nearly two years later, which the court treated as a further indicator of indolence and lack of good faith.

p. 2

Legal principles established

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  • Extension of time is discretionary and the delay must be reasonably explained, considering length of delay, reasons, prejudice, conduct of parties and chances of success.

Court orders

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  1. 1.Application for extension of time dismissed in its entirety
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4

Cases cited (2)

  • Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees
    Civil Application No. 190 of 2019

    Factors to consider in an application for extension of time

  • Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet
    [2018] eKLR

    Court must be satisfied that delay has been reasonably explained

On appeal from
Employment and Labour Relations Court at Kisumu
ELRC Cause No. 357 of 2015
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (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, "Marasi v Board of Management, Geturi Mixed Secondary School", Case Analysis (2022). Civil Application E047 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1083/eng@2022-10-07

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