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Court of AppealAllowedCivil Application E002 of 2020

Chepkoech v Mau Tea Multipurpose Co-operative Society Limited

Court of Appeal
26 October 2022
1,300 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 gave a worker more time to appeal after she missed a judgment she was never told about.

What this practically means

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Executive summary

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This is a ruling by F. Sichale, JA, sitting as a Single Judge of the Court of Appeal at Nakuru, on Catherine Chepkoech's motion dated 28th September 2020 seeking extension of time to file a Notice and Record of Appeal against the judgment of Mbaru, J of the Employment and Labour Relations Court at Kericho delivered on 24th August 2020 in ELRC Cause No. 48 of 2019. The applicant explained that after the hearing was closed on 13th July 2020 and the matter set for mention on 28th July 2020, judgment was nonetheless delivered on 24th August 2020 without her or her advocate being notified; she learned of it only on 18th September 2020 and filed the application on 28th September 2020. The respondent opposed, contending there was unexplained delay and lack of diligence. The judge restated the settled Rule 4 principles from Mwangi v Kenya Airways Limited and Leo Sila Mutiso v Rose Hellen Wangari Mwangi: length of delay, reason for delay, arguability of the appeal and prejudice. She found the roughly 10-day delay not inordinate, the explanation plausible given the unexplained fixing of the judgment date, the draft memorandum of appeal arguable, and no prejudice demonstrated by the respondent. The motion was allowed, with the Notice of Appeal to be filed within 7 days and the Record of Appeal within 60 days, failing which the orders would stand vacated; costs were to abide the outcome of the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted extension of time to file Notice and Record of Appeal under Rule 4
  2. 2.Whether the delay in lodging the intended appeal was inordinate and satisfactorily explained
  3. 3.Whether the intended appeal is arguable and whether the respondent would suffer prejudice

Key legal issues

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01

Extension of time under Rule 4

Holding

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.

Reasoning

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.

p. 2
02

Reason for delay

Holding

Delay attributable to the court below failing to notify counsel of the judgment date is a plausible explanation.

Reasoning

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

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  • 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

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  1. 1.The applicant's motion dated 28th September 2020 is allowed in terms of prayer (a)
  2. 2.Applicant to file and serve Notice of Appeal within 7 days from the date of the ruling
  3. 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. 4.Costs of the motion to abide the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.
p. 3disposition
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.
final orders
It is now well settled that the decision whether or not to extend time for appealing is essentially discretionary.
p. 2extension of time principles
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.
p. 2length of delay

Issues in the judgment

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minor

Motion said to be brought under Rule (2)(b) but decided under Rule 4

minor

Replying affidavit dated 12th September 2022 predates the 28th September 2020 application

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, "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.