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Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment· [2024] KECA 377 (KLR)

Henry Abel Onyango v National Oil Corporation of Kenya

Court of Appeal of Kenya
28 March 2024
756 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 extra time to appeal because the applicant's hospitalisation excuse rested on a seemingly altered medical note.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi, delivered on 28th March 2024 by Kiage, JA (sitting as a single judge), on a motion seeking extension of time to lodge a notice of appeal against a judgment of the Employment and Labour Relations Court (Ongaya, J.) of 22nd June 2023, with the notice of appeal filed on 25th July 2023 to be deemed duly filed and served. The applicant, through his advocate Fozah Onyimbo, explained the delay on the basis that counsel could not reach him for instructions because he had been unwell and admitted at Glenfin Donholm Cottage Hospital for a month. The respondent opposed, contending that no plausible reason for the delay was given, that the medical note did not support the claimed hospitalisation, that nothing prevented counsel from filing and later withdrawing a notice of appeal, and that the intended appeal was frivolous. Applying the principles in the Supreme Court's decision in Nicholas Korir Arap Salat v IEBC & 7 Others, the court held the delay inordinate, noting that a notice of appeal requires no express client instructions and can be withdrawn. It found the hospitalisation narrative incredible: the handwritten medical chit referred only to follow-up, lacked the author's designation, and bore an apparent alteration of the month, suggesting it was doctored. Invoking the requirement that a party seeking equitable discretion must do equity, beginning with absolute candour, the court dismissed the application with costs to the respondent.

Key legal issues

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01

Whether the delay of about a month in filing the notice of appeal was inordinate and excusable

Holding

The delay was inordinate and the explanation - that counsel could not reach the client who was hospitalised - was not plausible; absence of instructions does not excuse delay in filing a simple notice of appeal that can be withdrawn

Reasoning

The court applied the Salat principles. It observed that a notice of appeal requires no express instructions and can always be withdrawn, so counsel's inability to reach the client was no excuse. The hospitalisation narrative failed on the evidence: the medical note referred only to follow-up, not admission, and the month appeared altered from July to June, rendering the explanation implausible.

p. 2
02

Whether the medical note supporting the hospitalisation claim was credible

Holding

The medical chit was doctored, with the month altered without counter-signing and no indication of the author's designation, so the claimed hospitalisation was not credible

Reasoning

The court examined the handwritten chit dated 21st July 2023 signed by one 'Henry R.O.' with no designation stated. It stated the applicant was a follow-up patient since June, yet June appeared superimposed over July without counter-signing, and no hospital records showed in-patient admission. The inescapable impression was that the document had been manipulated, destroying the credibility of the explanation.

p. 2

Legal principles established

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  • A party seeking the court's equitable discretion for extension of time must do equity, the beginning point of which is absolute candour, and an implausible or doctored explanation forfeits that relief
  • A notice of appeal is a simple document signifying intent to appeal that does not require express client instructions, and absence of instructions does not excuse delay in filing it

Court orders

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  1. 1.The application for extension of time is disallowed with costs to the respondent
On appeal from
Employment and Labour Relations Court
Not stated in the judgment
Jurisdiction invoked
Inherent discretion to extend time under the Court of Appeal Rules (notice of appeal prescribed within 14 days by the Rules); extension-of-time 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, "Henry Abel Onyango v National Oil Corporation of Kenya", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/377/eng@2024-03-28

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