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Court of AppealAllowedApplication dated 14th July 2023 (in respect of High Court Judicial Review Case No. E157 of 2021: Republic v Retirement Benefits Appeal Tribunal & 3 Others)· [2023] KECA 1300 (KLR)

Mumo & 168 others v Retirement Benefits Appeal Tribunal Co-Operative Bank of Kenya Staff Retirement & 2 others (Civil Appeal (Application) E524 of 2023) [2023] KECA 1300 (KLR)

Court of Appeal of Kenya
27 October 2023
1,519 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed late filing of an appeal record, confirming courts will prioritise justice over strict deadlines when delays are explained.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by Asike-Makhandia, JA, delivered on 27th October 2023, on an unopposed application dated 14th July 2023 seeking extension of time to file and serve a record of appeal out of time. The applicants were dissatisfied with a judgment of the High Court in Judicial Review Case No. E157 of 2021 delivered on 9th February 2023 and had filed a notice of appeal and letter bespeaking proceedings within time, but the typed proceedings were only availed on 3rd July 2023, after the 60-day period under rule 82 of the Court of Appeal Rules, 2010 had lapsed. The record of appeal was filed on 12th July 2023, some 139 days after judgment. The respondents, though served, did not oppose the application. Applying the crystallised principles from Leo Sila Mutiso v Hellen Wangari Mwangi - the length of delay, the reason for delay, arguability of the intended appeal, and prejudice to the opposite party - the court found the delay not inordinate given the explanation concerning typed proceedings, held the 23 grounds of appeal arguable, and found no prejudice to the respondents. Invoking the court's inherent power as restated in Kenya Power & Lighting Co Ltd v Benzene Holdings, the judge held that refusing relief would amount to rendering justice on technicalities. The application was allowed, the record of appeal filed on 12th July 2023 was deemed properly filed and served, and costs of the application were made to abide the outcome of the appeal. A minor internal inconsistency exists in the order, which refers to an application dated 3rd October 2019 rather than 14th July 2023.

Key legal issues

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01

Principles governing extension of time under rule 4 of the Court of Appeal Rules

Holding

The court considers four factors: length of delay, reason for delay, arguability of the intended appeal, and prejudice to the opposite party.

Reasoning

The court restated the crystallised principles from Leo Sila Mutiso v Hellen Wangari Mwangi. It found a delay of 139 days not inordinate compared to delays in prior authorities, accepted the explanation that typed proceedings were only availed on 3rd July 2023, found the 23 grounds of appeal arguable, and noted the application was unopposed so no prejudice would be suffered.

p. 2
02

Definition of an arguable appeal

Holding

An arguable appeal need not succeed but must warrant the court's interrogation.

Reasoning

The court held that grounds raising legitimate questions worthy of consideration satisfy the arguability threshold. The applicants' grounds, including a claim that the Judge failed to properly evaluate evidence, were found definitely arguable, citing Sammy Mwangi Kiriethe & 2 Others v Kenya Commercial Bank.

p. 3
03

Discretion to extend time and avoidance of technicalities

Holding

Shutting out an applicant where the law donates power to extend time, without valid reason, amounts to rendering justice on technicalities.

Reasoning

Relying on Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints, the court described its inherent power as residual intrinsic authority to right an injustice. Given the applicants had initiated the appellate process and the respondents opposed nothing, the interest of justice demanded granting the extension.

p. 3

Legal principles established

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  • The Court may extend time limited by its Rules on such terms as it thinks just, guided by the length of delay, reason for delay, arguability of the intended appeal, and prejudice to the opposite party.

Court orders

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  1. 1.Leave of extension of time within which to file and serve a record of appeal is granted to the applicant
  2. 2.The record of appeal filed on July 12th 2023 is deemed as properly filed and served
  3. 3.Costs of the application to abide the outcome of the appeal already filed

Authorities

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Legislation

  • Court of Appeal Rules, 2010rule 4
  • Court of Appeal Rules, 2010rule 82

Cases cited (6)

  • Kenya Ports Authority v Maur Abdalla Banamaka
    [2018] eKLR
  • Leo Sila Mutiso v Hellen Wangari Mwangi
    [1999] 2 EA 231
  • George Mwende Muthoni v Mama Day Nursery and Primary School, Nyeri
    null
  • Aviation Cargo Support Limited v St. Marks Freight Services Limited
    [2014] eKLR
  • Sammy Mwangi Kiriethe & 2 Others v Kenya Commercial Bank
    [2020] eKLR
  • Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints
    [2016] eKLR
On appeal from
High Court of Kenya
Judicial Review Case No. E157 of 2021
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010

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, "Mumo & 168 others v Retirement Benefits Appeal Tribunal Co-Operative Bank of Kenya Staff Retirement & 2 others (Civil Appeal (Application) E524 of 2023) [2023] KECA 1300 (KLR)", Case Analysis (2023). Application dated 14th July 2023 (in respect of High Court Judicial Review Case No. E157 of 2021: Republic v Retirement Benefits Appeal Tribunal & 3 Others). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1300/eng@2023-10-27

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