Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application E030 of 2022· [2022] KECA 1271 (KLR)

Turea Limited t/a Dr. Mattress v Mohamed

Court of Appeal
18 November 2022
2,368 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to forgive a missed appeal deadline because the company could not prove why its clerk failed to file on time.

What this practically means

#

Executive summary

#
This is a ruling by a single Judge of the Court of Appeal at Mombasa (P. Nyamweya JA) on Turea Limited's application dated 11th May 2022 for extension of time to file and serve a Notice of Appeal and Memorandum of Appeal against the judgment of the Employment and Labour Relations Court at Mombasa (B. Ongaya J.) dated 1st April 2022 in ELRC Appeal No 44 of 2021, and for deeming of the documents as filed. A stay-of-execution prayer was abandoned at the hearing since it cannot be granted by a single Judge. The Applicant attributed the failure to file the Notice of Appeal within fourteen days to an inadvertent error by its counsel's clerk, arguing that counsel's mistake should not be visited on an innocent litigant. The Respondent opposed, contending the application was brought in bad faith, that the explanation was unsubstantiated (no affidavit from the clerk), that settlement discussions had commenced, and that the supporting affidavit was improperly sworn by an advocate. The court first declined to strike out the advocate-sworn affidavit, holding under Rule 9 of the Advocates Practice Rules that only affidavits on contentious matters outside the advocate's knowledge are defective. The Respondent's grounds of opposition were held superfluous since affidavits were filed. On the substantive Rule 4 question, applying the Mutiso factors as restated in Salat, the Judge held the roughly one-month delay inexcusable and unsubstantiated, and noted that no steps had been taken toward the Record of Appeal, without which extension for the Memorandum alone would serve no purpose. The application was dismissed with costs to the Respondent.

Key legal issues

#
01

Propriety of an affidavit sworn by the Applicant's advocate

Holding

The affidavit was not defective as it was confined to formal or non-contentious matters within the advocate's knowledge

Reasoning

Under Rule 9 of the Advocates Practice Rules, an advocate may give evidence by affidavit on formal or non-contentious matters in a matter in which he acts. The affidavit addressed the advocate's awareness of the failure to file the Notice of Appeal, the cause of delay, and arguability of the appeal, which are not contentious issues. The invitation to strike it out was declined.

p. 3
02

Propriety of the Respondent's grounds of opposition

Holding

The challenge was a non-issue; the grounds of opposition were superfluous since affidavits were filed in response as required

Reasoning

Rule 50 of the 2010 Rules (now Rule 52 of the 2022 Rules) requires affidavits to be filed in response to an application, which the Respondent did. The grounds of opposition were therefore of no consequence and the challenge to them was academic.

p. 3
03

Whether extension of time should be granted under Rule 4

Holding

Extension of time refused; the delay was inexcusable and unexplained, and extension for the Memorandum alone would serve no useful purpose

Reasoning

Applying the Mutiso factors as restated by the Supreme Court in Salat, the court found the roughly one-month delay inexcusable because the explanation (clerk's failure to follow instructions) was unsubstantiated, no affidavit from the clerk was filed, and the Applicant did not controvert that settlement discussions had commenced, which cast doubt on the reasons and pointed to prejudice. Further, no steps toward the Record of Appeal were shown.

p. 4

Legal principles established

#
  • The discretion to extend time under Rule 4 is unfettered but must be exercised judiciously, guided by the length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the Respondent
  • An affidavit sworn by an advocate is not defective merely because it is sworn by an advocate, but only if it addresses contentious issues of which the advocate has no personal knowledge
  • An appeal under Rule 82 (now Rule 84) is instituted by lodging both the Memorandum of Appeal and the Record of Appeal

Court orders

#
  1. 1.Dismissal of the Applicant's Notice of Motion application dated 11th May 2022
  2. 2.Costs of the application to the Respondent

Authorities

#

Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal Rules, 2010Rule 75(2)
  • Court of Appeal Rules, 2022Rule 77(2)
  • Court of Appeal Rules, 2010Rule 82
  • Court of Appeal Rules, 2022Rule 84
  • Court of Appeal Rules, 2010Rule 50
  • Court of Appeal Rules, 2022Rule 52
  • Advocates Practice RulesRule 9

Cases cited (9)

  • Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others
    [2019] eKLR

    Factors governing exercise of discretion to extend time

  • Paul Wanjohi Mathenge vs Duncan Gichane Mathenge
    [2013] eKLR

    Jurisdiction and discretion to extend time

  • Vishva Stone Suppliers Company Limited vs RSR Stone (2006) Limited
    [2020] eKLR

    Mistakes of counsel cannot be visited on an innocent party where delay is explained

  • Catherine Njoguini Kenya & 2 others vs Commercial Bank of Africa Ltd
    Civil Application No. Nai.366 of 2009

    Mistakes of counsel cannot be visited on an innocent party

  • Kamlesh M.A. Patni vs Nasir Ibrahim Ali & 2 others
    CA 354/2004

    No prohibition against an advocate swearing an affidavit on facts within his own knowledge

  • Kartar Singh Dhupar & Co. Ltd. vs Lianard Holding Limited
    [2017] eKLR

    Preliminary objections and grounds of opposition relate purely to matters of law

  • Leo Sila Mutiso vs Rose Hellen Wangare Mwangi
    Civil Application No Nai 255 of 1997 (ur)

    Factors for extension of time: length and reason of delay, chances of success, prejudice

  • Tana & Athi Rivers Development Authority vs Jeremiah Kimigho Mwakio & 3 others
    [2015] eKLR

    Failure by an advocate to do what the law requires is not excusable

  • Muthuri v Mama Day Nursery and Primary School Limited
    [2014] eKLR

    Readiness to release decretal sum indicates no irreparable harm

On appeal from
Employment and Labour Relations Court at Mombasa
ELRC Appeal No 44 of 2021
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time), exercised by a single Judge

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Turea Limited t/a Dr. Mattress v Mohamed", Case Analysis (2022). Civil Application E030 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1271/eng@2022-11-18

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