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Court of AppealDismissedCivil Application E128 of 2023· [2023] KECA 1673 (KLR)

Muthoka v Ethics & Anti-Corruption Commission & another

Court of Appeal
15 December 2023
1,436 words in judgment
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by F. Tuiyott, JA, on the applicant's notice of motion dated 4th April 2023 seeking extension of time to file and serve a Record of Appeal against the judgment of Monica Mbaru, J of the Employment and Labour Relations Court delivered on 22nd September 2022 in Constitutional Petition No. E018 of 2022. A notice of appeal was filed timeously on 30th September 2022, but the Record of Appeal was not filed within the sixty-day period expiring on or about 30th November 2022. The applicant attributed the delay to her former advocates' failure to release her file, delayed instructions, and delays in obtaining proceedings from the registry. Both respondents opposed, the 1st respondent additionally invoking rule 85 to have the notice of appeal deemed withdrawn because the request for typed proceedings was never served as required by rule 84(2). The court held that without service of the bespeaking letter, the applicant could not invoke the proviso excluding time for preparation of typed proceedings; time therefore ran from the notice of appeal. The court found the delay of some 124 days inordinate and inadequately explained, noting the current advocates took 78 days merely to request the file and that proceedings were ready for collection by 14th November 2022, within the limitation period. Applying the Fakir Mohamed v Joseph Mugambi considerations, the court held the rule 4 discretion must be exercised judiciously and not on sympathy, and dismissed the application with costs to the respondents. The intended appeal was therefore never admitted; the decision below was not disturbed.

Key legal issues

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01

Exclusion of time for typed proceedings under rule 84 proviso

Holding

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.

Reasoning

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.

p. 3
02

Adequacy of explanation for the delay

Holding

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.

Reasoning

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.

p. 3
03

Exercise of discretion under rule 4

Holding

The discretion was declined; the applicant was not deserving of enlargement of time.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application of 4th April, 2023 is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 85
  • Court of Appeal RulesRule 118

Cases cited (1)

  • Fakir Mohamed v Joseph Mugambi & 2 others
    [2005] eKLR

    Considerations for exercise of discretion to extend time for filing an appeal

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

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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, "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.