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Court of AppealAllowedCivil Appeal (Application) E023 of 2021· [2022] KECA 1171 (KLR)

Francis Ochieng Oiro v Nairobi City County Government

Court of Appeal
21 October 2022
967 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 allowed an 82-day late appeal because the lawyer's mistake in filing shouldn't punish the client.

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 (Murgor, JA) on a Notice of Motion dated January 27, 2021 by Francis Ochieng Oiro seeking leave to lodge an appeal out of time against the judgment of the Employment and Labour Relations Court at Nairobi (Onyango, J.) delivered on November 6, 2020 in Petition 198 of 2019, and seeking that the notice of appeal, memorandum and record of appeal filed on January 25, 2021 be deemed properly filed. The application was brought under sections 3A and 3B of the Appellate Jurisdiction Act and rules 4 and 82 of the Court's rules. The applicant explained that his former advocates requested typed proceedings but omitted to file a notice of appeal; upon realising the omission he promptly instructed new counsel, who obtained the proceedings and filed the appeal documents. The respondent, though served, did not appear or file submissions. Applying the settled rule 4 principles from Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court held the 82-day delay was not inordinate and was adequately explained, being a mistake of former counsel which should not be visited on the applicant, and that no prejudice would befall the respondent beyond defending the appeal. The court extended time, deemed the appeal documents properly filed and served, and awarded costs in the appeal. The decision below was not disturbed at this interlocutory stage; the intended appeal remains to be heard on its merits.

Key legal issues

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01

Whether the 82-day delay in filing the notice of appeal was inordinate and excusable

Holding

The delay was not inordinate and was adequately explained, being attributable to the former counsel's omission in failing to file a notice of appeal alongside the request for proceedings.

Reasoning

The judgment was delivered on November 6, 2020 and the motion lodged on January 27, 2021, a delay of 82 days. The record showed the former counsel requested typed proceedings on November 13, 2020 but filed no notice of appeal. The court construed this as an omission attributable to former counsel, a mistake that should not prevent the applicant from pursuing the appeal. Upon realising the error, the applicant promptly instructed new counsel who obtained proceedings and filed the appeal documents.

02

Whether the respondent would suffer prejudice if extension was granted

Holding

No prejudice would be occasioned to the respondent beyond having to mount a defence against the appeal.

Reasoning

The court found the applicant entitled to ventilate his appeal before the Court of Appeal. The only effect on the respondent would be that it would have to defend the appeal, which does not amount to cognisable prejudice for purposes of a rule 4 extension of time application.

p. 2

Legal principles established

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  • Under rule 4 of the Court of Appeal Rules, the court has an unfettered discretion to extend time, to be exercised judiciously having regard to the length of the delay, the reason for the delay, the chances of success of the appeal, and prejudice to the respondent.
  • A mistake or omission by a party's former counsel in failing to file a notice of appeal should not be visited on the party or prevent the pursuit of the appeal.

Court orders

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  1. 1.Time extended to lodge the appeal
  2. 2.The notice of appeal, memorandum and record of appeal lodged on January 25, 2021 deemed as properly filed and served on the respondent
  3. 3.Costs in the appeal
On appeal from
Employment and Labour Relations Court at Nairobi
Petition Number 198 of 2019
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 and rule 82 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis Ochieng Oiro v Nairobi City County Government", Case Analysis (2022). Civil Appeal (Application) E023 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1171/eng@2022-10-21

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