Omido & another v Mbarak & 4 others (Civil Application E029 of 2022) [2023] KECA 972 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a two-year-late appeal because registrar delays, not the applicants, caused it, confirming courts prefer substance over procedure.
What this practically means
#Executive summary
#Key legal issues
#Principles governing extension of time under Rule 4 of the Court of Appeal Rules
The court's discretion under Rule 4 is unfettered but must be exercised upon reasons, guided principally by the length of the delay, the reasons for it, the arguability of the intended appeal, and prejudice to the respondent, the list being non-exhaustive.
The court restated the settled Rule 4 jurisprudence, citing Fakir Mohamed, Leo Sila Mutiso and Salat. Extension of time is an equitable remedy, not a right, granted on a case-by-case basis where the delay is explained and the respondent is not unduly prejudiced. The discretion is unfettered but judicial, exercised on reasons rather than whims, and the enumerated factors are relevant but not exhaustive.
Whether failure to file the Memorandum of Appeal independently of the Record of Appeal amounts to unexplained delay
The practice of filing the memorandum of appeal together with, and incorporated in, the record of appeal is logical and cannot be penalised, since rule 94(1) contemplates that both documents are served together.
Although rule 84(1) does not bar filing a memorandum before obtaining proceedings, rule 94(1) contemplates the memorandum and record being served together, so the established practice of lodging them together has acquired a force of law. The applicants thus adhered to a rule of practice and cannot be faulted for not filing the memorandum separately while awaiting proceedings.
Effect of failure to copy the request for proceedings to the respondents
Failure to copy the letter bespeaking proceedings does not preclude reliance on the certificate of delay; it only disentitles the applicant from the proviso to rule 81, which is precisely why extension of time is sought.
The court reasoned that had the letter requesting proceedings been copied to the respondents, the applicants would have benefited from the proviso to rule 84(1). Since that omission is the very reason extension is needed, following Lucy Wambui Maina, a Registrar's delay certified in writing ought not to be visited on the applicants or their advocates.
Legal principles established
#- Recital of rules no longer in force is not fatal to an application where no prejudice is occasioned by the failure to cite the correct rules.
- Failure to copy the letter bespeaking proceedings to the respondent only disentitles an applicant from the proviso to rule 81 but does not preclude reliance on a certificate of delay to explain the delay.
- Where there is no fraud or intention to overreach and an innocent party can be compensated in costs, cases ought to be determined on their merits rather than on technicalities.
Court orders
#- 1.The Notice of Motion dated 30th November, 2022 is allowed
- 2.Time is extended for filing and serving the memorandum and Record of Appeal from the judgment of the ELC delivered on 17th June, 2020 in ELC Petition No. 20 of 2017
- 3.The memorandum and Record of Appeal to be filed and served within 21 days
- 4.Costs of the application awarded to the 1st and 2nd Respondents
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELC Petition No. 20 of 2017
- Jurisdiction invoked
- Rules 4 and 42 of the Court of Appeal Rules, 2010 and Article 159(2)(d) of the Constitution, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omido & another v Mbarak & 4 others (Civil Application E029 of 2022) [2023] KECA 972 (KLR)", Case Analysis (2023). Motion on Notice dated 30th November, 2022 (arising from ELC Petition No. 20 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/972/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.