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Court of AppealAllowedCivil Application E411 of 2022· [2022] KECA 1439 (KLR)

Oracle Technologies Systems (Kenya) Limited v Aluodo

Court of Appeal
15 December 2022
JMJM Mativo
2,016 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a company to serve its appeal notice 17 days late, ruling that an innocent mistake by a lawyer shouldn't kill a case.

What this practically means

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Executive summary

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This was an unopposed application under sections 3A and 38 of the Appellate Jurisdiction Act and rules 4, 77 and 79 of the Court of Appeal Rules, 2022, seeking leave to serve a notice of appeal out of time against the judgment of Mbaru J in ELRC Cause No. 227 of 2019, which declared the respondent's termination unlawful and awarded compensation of Kshs 2,838,486.50, notice pay of Kshs 946,162.17 and costs. The applicant filed its notice of appeal on 14th October 2022 but inadvertently failed to serve it as a separate document on the respondent's advocates within the 7-day period required by rule 79(1), effecting service only on 7th November 2022, 17 days late. Mativo JA applied the Supreme Court's Salat principles, holding that extension of time is an equitable discretion, that the 17-day delay was not inordinate and was adequately explained, and that counsel's mistake was innocent and excusable. The intended appeal was found arguable without determining its merits, and no prejudice to the respondent was demonstrated, the application being unopposed. Leave was granted, time was extended to the date of actual service, the notice of appeal was deemed properly served, and there were no orders as to costs.

Key legal issues

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01

Extension of time for service of notice of appeal

Holding

The delay of 17 days was not inordinate, was explained to the satisfaction of the court, and the counsel's mistake was innocent and excusable.

Reasoning

The court applied the Salat principles: burden on the applicant to explain delay, absence of prejudice, and promptness. The respondent filed no replying affidavit to controvert the factual claims of inadvertence, so the court accepted the explanation and found no reason to penalise the applicant for counsel's innocent mistake.

p. 3
02

Arguability of the intended appeal

Holding

The intended appeal was arguable without going into the merits, which remain for the full bench.

Reasoning

A single judge does not determine the merits of an intended appeal with finality; the test is whether the appeal is possibly arguable, per Athuman Nusura Juma v Afwa Mohamed Ramadhan. The draft memorandum of appeal satisfied this threshold.

p. 3
03

Prejudice to the respondent

Holding

No prejudice was demonstrated; the right to be heard is a valued right that would be offended by depriving a party of appeal without a hearing.

Reasoning

Relying on Mbaki & Others v Macharia, the court held it would offend notions of justice to prejudice a party's rights without an opportunity to be heard. The respondent did not oppose the application or demonstrate any prejudice.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy available to a deserving party at the discretion of the court, not a right of a party.
  • The court's discretion to extend time under rule 4 arises only after sufficient reason for extension has been established.

Court orders

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  1. 1.Leave granted extending time within which the applicant is required to serve a notice of appeal upon the respondent
  2. 2.The period for service of the notice of appeal extended to the date the notice was actually served upon the respondent
  3. 3.The notice of appeal filed on 14th October 2022 deemed properly served upon the respondent
  4. 4.No orders as to costs

Authorities

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Legislation

  • Appellate Jurisdiction Act, Cap 9section 3A
  • Appellate Jurisdiction Act, Cap 9section 38
  • Court of Appeal Rules, 2022rule 4
  • Court of Appeal Rules, 2022rule 77(1)(2)(3)(6)
  • Court of Appeal Rules, 2022rule 79(1)

Cases cited (6)

  • Dakawou Transporters Limited v National Land Commission & 3 Others
    [2021] eKLR

    Allowed leave to serve a notice of appeal out of time; right to a hearing is well-protected and the cornerstone of the rule of law.

  • Nicholas Kiptoo arap Korir Salat v IEBC
    [2014] eKLR

    Guiding principles for extension of time: equitable remedy, burden on applicant, explanation of delay, prejudice, undue delay, public interest.

  • National Hospital Insurance Fund Board of Management v Kenya Union of Commercial Food and Allied Workers
    [2020] eKLR

    Referenced alongside the Salat extension-of-time principles.

  • Abdul Azizi Ngoma v Mungai Mathayo
    [1976] Kenya LR 61

    Discretion under rule 4 arises only after sufficient reason is established; other considerations follow.

  • Athuman Nusura Juma v Afwa Mohamed Ramadhan
    [2016] eKLR

    A single judge does not determine merits with finality; arguability is prefixed by 'possibly'.

  • Mbaki & Others v Macharia & Another
    [2005] 2EA 206

    The right to be heard is a valued right; prejudice without a hearing offends justice.

On appeal from
Employment Court of Kenya at Nairobi
ELRC Cause No. 227 of 2019
Jurisdiction invoked
Sections 3A and 38 of the Appellate Jurisdiction Act, Cap 9 and rules 4, 77(1)(2)(3)(6), 79(1) of the Court of Appeal Rules, 2022

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, "Oracle Technologies Systems (Kenya) Limited v Aluodo", Case Analysis (2022). Civil Application E411 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1439/eng@2022-12-15

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