Chepkoech v Mau Tea Multipurpose Co-operative Society Limited
The bottom line
#Kenya's Court of Appeal gave a worker more time to appeal after she missed a judgment she was never told about.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time to file Notice and Record of Appeal under Rule 4
- 2.Whether the delay in lodging the intended appeal was inordinate and satisfactorily explained
- 3.Whether the intended appeal is arguable and whether the respondent would suffer prejudice
Key legal issues
#Extension of time under Rule 4
The Court has wide and unfettered discretion, to be exercised judiciously, applying the settled factors of length of delay, reason for delay, arguability and prejudice.
The judge restated the principles from Mwangi v Kenya Airways and Leo Sila Mutiso, then applied each factor: the delay of about 10 days was not inordinate; the delay was explained by the trial court's failure to notify counsel of the judgment date; the draft memorandum showed an arguable appeal; and no prejudice was demonstrated.
Reason for delay
Delay attributable to the court below failing to notify counsel of the judgment date is a plausible explanation.
The trial court had closed the hearing on 13th July 2020 and directed mention on 28th July 2020, yet judgment was delivered on 24th August 2020 without any record of the date being fixed, and the judgment did not indicate whether parties were present. The explanation was therefore accepted as plausible.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, guided by the length of delay, reason for delay, arguability of the appeal and prejudice to the respondent.
Court orders
#- 1.The applicant's motion dated 28th September 2020 is allowed in terms of prayer (a)
- 2.Applicant to file and serve Notice of Appeal within 7 days from the date of the ruling
- 3.Record of Appeal to be filed within 60 days from the date of lodging the Notice of Appeal, failing which the orders shall stand vacated
- 4.Costs of the motion to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court at Kericho
- ELRC Cause No. 48 of 2019
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (single Judge jurisdiction)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the applicant’s motion dated 28th September 2020 is meritorious and the same is hereby allowed in terms of prayer (a) thereof.
The applicant shall file and serve the Notice of Appeal with 7 days from the date of this ruling and Record of Appeal within 60 days from the date of lodging the Notice of Appeal failure to which these orders shall stand vacated.
It is now well settled that the decision whether or not to extend time for appealing is essentially discretionary.
There has therefore been a delay of about 10 days in filing the instant application from 18th September 2020, when the applicant contends she became aware of the judgment to 28th September 2020 when the instant application was filled, which delay in my considered opinion is not inordinate.
Issues in the judgment
#Motion said to be brought under Rule (2)(b) but decided under Rule 4
Replying affidavit dated 12th September 2022 predates the 28th September 2020 application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepkoech v Mau Tea Multipurpose Co-operative Society Limited", Case Analysis (2022). Civil Application E002 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1196/eng@2022-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.