Turea Limited t/a Dr. Mattress v Mohamed
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
#Key legal issues
#Propriety of an affidavit sworn by the Applicant's advocate
The affidavit was not defective as it was confined to formal or non-contentious matters within the advocate's knowledge
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.
Propriety of the Respondent's grounds of opposition
The challenge was a non-issue; the grounds of opposition were superfluous since affidavits were filed in response as required
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.
Whether extension of time should be granted under Rule 4
Extension of time refused; the delay was inexcusable and unexplained, and extension for the Memorandum alone would serve no useful purpose
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.
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.Dismissal of the Applicant's Notice of Motion application dated 11th May 2022
- 2.Costs of the application to the Respondent
- 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.