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Court of AppealAllowedCivil Appeal (Application) 89 of 2018· [2022] KECA 1156 (KLR)

County Public Service Board Kitui v Kenya County Government Workers’ Union

Court of Appeal
19 October 2022
LKL. K. Kimaru
1,010 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed Kitui's County Public Service Board to file its appeal late, ruling that delays caused by the court itself don't count against a party.

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 Nyeri (Kimaru, JA) on an application under rule 4 of the Court of Appeal Rules by the County Public Service Board Kitui seeking extension of time to file and serve its memorandum and record of appeal against a ruling of the Employment and Labour Relations Court at Nyeri (Ongaya, J.) dated 16 June 2017 in Cause No. 45 of 2016. The applicant attributed the delay partly to the time the court took to type proceedings and issue a certificate of delay, and partly to miscommunication with the registry over filing fees. The respondent opposed, arguing the cumulative delay of over a year was inexcusable and that the intended appeal was not arguable since the subject matter of the cause remained outstanding. The court applied the well-established Fakir Mohamed v Joseph Mugambi factors, holding that its discretion under rule 4 is unfettered. It apportioned the delay, finding the one-year period was outside the applicant's control because proceedings were being typed, while the applicant-attributable delays of 15 and 42 days were not so long as to cause actual prejudice. The respondent would have an opportunity to oppose the appeal at the hearing, and any prejudice would be compensated by costs. The application was allowed: time was extended, the memorandum and record of appeal filed on 27 June 2018 were deemed properly filed, service was to be effected within fourteen days, and the respondent was awarded the costs of the application. The underlying ELRC decision was not disturbed at this interlocutory stage.

Key legal issues

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01

Whether the delay in filing the memorandum and record of appeal was inordinate and excusable

Holding

The delay was not inordinate; the one-year period was attributable to the court typing proceedings, and the applicant-attributable delays of 15 and 42 days did not cause actual prejudice.

Reasoning

The court apportioned the delay: the one-year period was outside the applicant's control because proceedings were being typed by the court. The remaining periods (15 and 42 days) were short and caused no actual prejudice, since the respondent could still oppose the appeal at the hearing. Any residual prejudice is compensable by costs.

p. 2
02

Whether the applicant should benefit from the court's discretion under rule 4

Holding

Yes; the applicant made a case for the exercise of discretion in its favour and the application was allowed.

Reasoning

Applying the Fakir Mohamed factors, the court found the explanation for delay satisfactory, the applicant-attributable delay short, and prejudice to the respondent compensable by costs. The court therefore extended time and deemed the memorandum and record of appeal filed on June 27, 2018 as properly filed.

p. 2

Legal principles established

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  • The Court of Appeal has unfettered discretion under rule 4 to extend time, guided by relevant factors including period and reason for delay, arguability, and prejudice.

Court orders

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  1. 1.The time for the applicant to file and serve the memorandum and record of appeal is extended
  2. 2.The memorandum and record of appeal filed in court on June 27, 2018 is deemed to be properly filed
  3. 3.The memorandum and record of appeal to be served within fourteen (14) days of the date of the ruling
  4. 4.The respondent shall have the costs of this application
On appeal from
Employment and Labour Relations Court at Nyeri
E. & L. R. C. Cause No. 45 of 2016
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent discretion to enlarge 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, "County Public Service Board Kitui v Kenya County Government Workers’ Union", Case Analysis (2022). Civil Appeal (Application) 89 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1156/eng@2022-10-19

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