Ondiek v Gougus & another (t/a Nakuru Teachers Training College)
The bottom line
#Kenya's Court of Appeal gave a worker 16 days late a second chance to appeal, because his lawyer never told him he'd lost.
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 and serve a notice of appeal out of time against the ruling of the ELRC
- 2.Whether the delay of about 16 days was inordinate and satisfactorily explained
- 3.Whether the intended appeal is arguable and whether the respondent would suffer prejudice
Key legal issues
#Principles for extension of time under rule 4
The court has wide and unfettered discretion under rule 4, to be exercised judiciously, guided by the length of and reason for delay, arguability of the appeal, and prejudice to the respondent.
The court restated the settled guidelines from Mwangi v Kenya Airways Ltd and Leo Sila Mutiso v Rose Hellen Wangari Mwangi. Applying them, a 16-day delay was not inordinate; the applicant's ignorance of the ruling due to his previous advocate's failure to inform him was a plausible explanation; the draft memorandum showed an arguable appeal; and no prejudice was demonstrated by the respondent.
Length of delay
A delay of about 16 days between delivery of the ruling and the application was not inordinate.
The ruling was delivered on July 13, 2022; the applicant deponed he learned of it on July 27, 2022, and filed the motion on July 29, 2022. Measured from the applicant's awareness, the delay was about 16 days, which the single judge did not consider inordinate.
Reason for delay
The applicant's failure to lodge a timely appeal was explained by his previous advocate's failure to notify him of the ruling, and the explanation was accepted as plausible.
The applicant deposed that he only became aware of the dismissal on July 27, 2022 when he visited his previous advocate's office, and promptly instructed current advocates. The respondent contested this, but the court was satisfied the delay was explained to its satisfaction.
Arguability and prejudice
The draft memorandum of appeal disclosed an arguable appeal, and the respondent failed to demonstrate prejudice if the extension were granted.
The judge examined the annexed draft memorandum of appeal and found it arguable, while declining to say more to avoid embarrassing the bench eventually seized of the appeal. The respondent did not demonstrate any prejudice it would suffer.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, and the court considers the length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent.
Court orders
#- 1.The applicant's motion dated July 29, 2022 is allowed in terms of prayer 2 (extension of time to file and serve the notice of appeal)
- 2.The applicant to file and serve the notice of appeal within 7 days of the ruling
- 3.The applicant to file and serve the record of appeal within 60 days 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 Nakuru
- Nakuru ELRC Cause No. 78 of 2015
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya 2010; rules 4, 41 & 42 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act
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 applicants motion dated July 29, 2022, is meritorious and the same is hereby allowed in terms of prayer 2 thereof.
The applicant will file and serve the notice of appeal within 7 days of this ruling and further file and serve the record of appeal with 60 days of lodging of the notice of appeal failure to which these orders shall stand vacated.
The costs of this motion shall abide the outcome of the intended appeal. Orders accordingly.
It is now well settled that the decision whether or not to extend time for appealing is essentially discretionary.
first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondiek v Gougus & another (t/a Nakuru Teachers Training College)", Case Analysis (2022). Civil Application E046 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1200/eng@2022-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.