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Court of AppealDismissedNot stated in the judgment· [2024] KECA 368 (KLR)

Odhiambo & 4 others (Sued in Their Capacity as the Trustees of the Cradle – The Children Foundation) v Odera (Civil Appeal (Application) 151 of 2019) [2024] KECA 368 (KLR)

Court of Appeal
12 April 2024
SKS. Gatembu KairuFTF. TuiyottGNG.W. Ngenye-Macharia
629 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 refused to strike out an appeal because the time the trial court took to prepare proceedings doesn't count against the appellant.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal in Nairobi, in which Tony Moses Odera, respondent in a pending appeal, sought to strike out the appeal on the ground that the Memorandum and Record of Appeal had not been filed within the 60 days prescribed by rule 83 (now rule 86) of the Court of Appeal Rules. The appeal challenged a judgment of the Employment and Labour Relations Court (Rika, J.) delivered on 18th August 2016, awarding Odera damages for unfair termination of employment. The Notice of Appeal had been deemed properly filed out of time by an order of 20th December 2018. The applicant, relying on Tropicana Hotels Limited v SBM Bank (Kenya) Limited, argued that the appeal should be deemed withdrawn for failure to file the record within 60 days. The appellant countered, citing Kenya Ports Authority v Maur Abdalla Bwanamaka, that it had applied for typed proceedings by letter dated 14th May 2018, copied to the applicant's advocates, thereby postponing the time for filing the record; it also relied on a Certificate of Delay dated 15th April 2019 issued by the Deputy Registrar of the ELRC, which certified that the period for preparation and delivery of proceedings was 14th May 2018 to 18th March 2019, being 308 days. The record of appeal was filed the following day, 16th April 2019. Although the applicant did not appear at the hearing, the Court considered his papers and dismissed the application with costs, holding that the unchallenged Certificate of Delay exempted the time taken to compile the proceedings from the computation of the 60-day period. No decision of the court below was disturbed, the judgment concerning only the fate of the appeal itself.

Key legal issues

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01

Computation of the 60-day period for filing a memorandum and record of appeal

Holding

The time taken by the trial court to prepare typed proceedings, once a timely application for proceedings is made and served, is excluded from the 60-day period; a Certificate of Delay evidencing that period defeats an application to deem the appeal withdrawn

Reasoning

The Court relied on its prior decision in Kenya Ports Authority v Maur Abdalla Bwanamaka to hold that a timely, served application for typed proceedings postpones the running of the 60-day period. The Deputy Registrar's Certificate of Delay certified 308 days (14th May 2018 to 18th March 2019) for preparation of proceedings, which the applicant had not addressed. The record was filed the day after the certificate was ready for collection, so there was no inordinate or unexplained delay.

p. 2
02

Evidential weight of a Certificate of Delay in applications under rule 86

Holding

An unchallenged Certificate of Delay issued by the Deputy Registrar is a critical document that a party seeking to have an appeal deemed withdrawn must confront; failure to do so is fatal to the application

Reasoning

The applicant relied on Tropicana Hotels Ltd v SBM Bank (Kenya) Ltd to urge that the record was filed out of time. The Court found that the Certificate of Delay dated 15th April 2019, certifying the period taken to prepare proceedings, was unchallenged and had escaped the applicant's attention. The Certificate excluded the Christmas Vacation period and showed the record was filed promptly on 16th April 2019, the day after it was ready.

p. 2

Legal principles established

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  • Where an application for typed proceedings is made and duly served on the respondent to the appeal, the time taken to compile the proceedings is excluded in computing the 60 days within which a memorandum and record of appeal must be filed

Court orders

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  1. 1.The applicant's application dated 25th April 2019 seeking to strike out the appeal is dismissed
  2. 2.Costs of the application awarded to the appellant

Authorities

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Legislation

  • Court of Appeal Rulesrule 83 (now rule 86)

Cases cited (2)

  • Tropicana Hotels Limited vs. SBM Bank (Kenya) Limited (formerly known as Fidelity Commercial Bank Ltd
    [2020] eKLR
  • Kenya Ports Authority vs. Maur Abdalla Bwanamaka
    [2018] eKLR
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
Inherent appellate jurisdiction under the Court of Appeal Rules (rule 83, now rule 86), governing striking out of appeals deemed withdrawn

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, "Odhiambo & 4 others (Sued in Their Capacity as the Trustees of the Cradle – The Children Foundation) v Odera (Civil Appeal (Application) 151 of 2019) [2024] KECA 368 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/368/eng@2024-04-12

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