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Court of AppealPartially AllowedCivil Application (rule 4 motion dated 18th April 2023)· [2024] KECA 276 (KLR)

Local Authorities Provident Fund Board of Trustees v Attorney General & 168 others (Civil Appeal (Application) E182 of 2023) [2024] KECA 276 (KLR)

Court of Appeal
8 March 2024
2,649 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave a pension board more time to serve appeal papers, despite a 62-day delay caused by its lawyers' oversight, because the case raised important public issues.

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 (S. Gatembu Kairu, JA) on a notice of motion dated 18th April 2023 by the Local Authorities Provident Fund Board of Trustees, seeking extension of time to serve its notice of appeal dated 25th January 2023 and its record of appeal dated 25th March 2023, following the Employment and Labour Relations Court's judgment of 20th December 2022. The notice of appeal was filed in time but served on some respondents only after 62 days, when counsel resorted to electronic service after a process server abandoned service following his uncle's sudden death. The record of appeal was served two days late. The applicant attributed the delay to the process server's failure and oversight; opposing respondents, led by Dr. Thiankolu, argued the advocates went into slumber, that the application was reactive to a striking-out application, and that an irregularity should not be regularised. Applying the rule 4 principles in Fakir Mohammed and the Supreme Court's Salat decision, the Judge found the advocates 'less than vigilant' but declined to shut the applicant out for counsel's mistake, guided by Belinda Murai. Weighing the public importance of the intended appeal - the constitutionality of the County Governments Retirement Scheme Act 2019 and the ELRC's jurisdiction - and the absence of prejudice not compensable by costs, the court allowed the application, extended time for service of both documents by 14 days, and awarded costs of the application to the opposing respondents.

Key legal issues

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01

Whether the 62-day delay in serving the notice of appeal was satisfactorily explained

Holding

The delay was explained but not excused; the advocates lapsed in failing to follow up the process server, yet the applicant should not be shut out on that mistake given the public-interest issues in the appeal

Reasoning

The applicant's advocates entrusted the notice of appeal to a process server and failed to follow up, waking to reality only when a respondent requested a copy. Although this was a lapse, counsel was candid about the mistake, the appeal raises the constitutionality of the County Governments Retirement Scheme Act 2019 and the ELRC's jurisdiction, and no irreparable prejudice to the opposing respondents was demonstrated.

p. 10
02

Whether public importance is a relevant factor in rule 4 applications

Holding

Yes; the constitutionality of the County Governments Retirement Scheme Act 2019 and the jurisdiction of the ELRC raise issues of public importance favouring extension

Reasoning

Relying on its own prior decision in University of Nairobi v Kevin Mbwaya, the Judge treated public importance as a relevant consideration, together with the absence of demonstrated prejudice incapable of compensation by costs, in exercising the unfettered rule 4 discretion in the applicant's favour.

p. 10
03

Whether an 'eye for an eye' principle should defeat the application because the applicant had itself sought to strike out another respondent's notice of appeal

Holding

No; the facts of that earlier application were not before the court and should not influence the discretion

Reasoning

The court declined to deny relief on the basis of equal treatment with a respondent whose notice of appeal the applicant had moved to strike out, holding that the circumstances of that earlier application were not before it.

p. 10

Legal principles established

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  • Rule 4 discretion is unfettered and guided by a non-exhaustive list of relevant factors including length and explanation of delay, chances of success, prejudice, and public importance
  • Extension of time is an equitable remedy, not a right; the applicant bears the burden of explaining delay to the satisfaction of the court
  • A litigant should not be shut out on account of a mistake by counsel where the interests of justice dictate rectification

Court orders

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  1. 1.Time within which to serve the notice of appeal dated 25th January 2023 extended
  2. 2.Time within which to serve the record of appeal dated 25th March 2023 extended
  3. 3.Service to be effected within 14 days from the date of delivery of the ruling
  4. 4.Costs of the application awarded to the 5th, 6th, 19th, 24th, 56th, 62nd, 119th, 148th and 169th respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 77
  • Court of Appeal Rulesrule 79(1)
  • Court of Appeal Rulesrule 84
  • Court of Appeal Rulesrule 92(1)
  • Constitution of Kenya, 2010article 162
  • County Government Retirement Scheme Act, 2019
  • Employment and Labour Relations Court Actsection 12

Cases cited (5)

  • County Executive of Kisumu vs. County Government of Kisumu & 8 others
    Civil Application No. 6 of 2016, [2017] eKLR
  • Fakir Mohammed v Joseph Mugambi & 2 others
    [2005] eKLR (Civil Application No. Nai 332 of 2004 (Nyr 32/04))
  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    Supreme Court Application No. 16 of 2014 [2014] eKLR
  • Belinda Murai & 9 others v Amos Wainaina
    [1979] eKLR
  • University of Nairobi v Kevin Mbwaya & 62 others
    [2018] eKLR
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
rule 4 of the Court of Appeal Rules (single Judge application)

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, "Local Authorities Provident Fund Board of Trustees v Attorney General & 168 others (Civil Appeal (Application) E182 of 2023) [2024] KECA 276 (KLR)", Case Analysis (2024). Civil Application (rule 4 motion dated 18th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/276/eng@2024-03-08

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