Muthoka v Ethics & Anti-Corruption Commission & another
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal because the applicant's lawyers never served their request for court proceedings on the other side.
What this practically means
#Executive summary
#Key legal issues
#Exclusion of time for typed proceedings under rule 84 proviso
The applicant could not benefit from the proviso because there was no evidence that the former advocates served the letter bespeaking proceedings on the respondents.
Rule 84(2) conditions reliance on the proviso on the application for a copy of proceedings being in writing and served on the respondent. The letter of 3rd October 2022 was not served, so time ran from the notice of appeal and lapsed on or about 30th November 2022, even though proceedings were ready by 14th November 2022.
Adequacy of explanation for the delay
The delay of some 124 days in bringing the application and 78 days taken by current advocates to request the file was not adequately explained.
The court found early communication between the two sets of advocates whose contents were withheld; the explanation of delayed instructions was unelaborated and the court declined to speculate. Proceedings were ready for collection within the limitation period, undermining the excuse.
Exercise of discretion under rule 4
The discretion was declined; the applicant was not deserving of enlargement of time.
Applying the Fakir Mohamed considerations, the court held the discretion must be applied judiciously and not on sympathy or caprice; the applicant failed to persuade the court she deserved the indulgence.
Legal principles established
#- An appellant cannot rely on the proviso to rule 84(1) to exclude time taken for preparation of typed proceedings unless the written request for the copy of proceedings was served on the respondent.
- The discretion to enlarge time under rule 4 must be exercised judiciously, not whimsically, on sympathy or caprice.
Court orders
#- 1.The application of 4th April, 2023 is dismissed with costs to the respondents
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Constitutional Petition No. E018 of 2022
- Jurisdiction invoked
- Rules 4 and 75 of the Court of Appeal Rules (extension of time to file an appeal out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthoka v Ethics & Anti-Corruption Commission & another", Case Analysis (2023). Civil Application E128 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1673/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.