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Court of AppealDismissedNairobi Employment and Labour Relations Court Misc. Application No. 205 of 2023 (intended appeal; Motion under rules 4 and 47 of the Court of Appeal Rules, 2010)· [2024] KECA 892 (KLR)

Munyua v ABSA Bank Kenya PLC (Civil Application E243 of 2024) [2024] KECA 892 (KLR)

Court of Appeal of Kenya
26 July 2024
SKS. ole Kantai
1,454 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a former Absa employee's bid to appeal late, showing courts won't excuse unexplained delays in filing notices of appeal.

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. ole Kantai, JA) delivered at Nairobi on 26th July 2024 in a Motion under rules 4 and 47 of the Court of Appeal Rules, 2010. The applicant, Oliver Thandi Munyua, a former employee of Absa Bank Kenya PLC whose services were summarily terminated in March 2018, sought extension of time to file and serve a Notice of Appeal and a letter requesting typed proceedings for an intended appeal against a ruling of Ongaya, J. delivered on 17th November 2023 in Nairobi ELRC Misc. Application No. 205 of 2023. That ruling had dismissed his application for leave to file a petition for compensation out of time, the judge finding no power to extend the limitation period under section 90 of the Employment Act and no disabling ground for the delay. The respondent opposed, characterising the Motion as an abuse of process, noting a delay of over five months and a pattern of disregard for statutory timelines. Applying the principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court found the delay inordinate and unexplained, the reason offered (time to instruct counsel) unreasonable given the applicant's continuous involvement in the litigation, and the intended appeal lacking any chance of success. The Motion was dismissed with costs to the respondent. This decision binds no lower court on the merits but illustrates the faithful application of the established extension-of-time criteria.

Key legal issues

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01

Whether the delay of over five months in filing the Notice of Appeal was adequately explained

Holding

The delay was not explained; the reason offered, that it took time to instruct counsel, was not reasonable where the applicant had been involved all along in the litigation in the criminal court and before the ELRC, and reasonable steps for appealing should have been taken as prescribed by the rules.

Reasoning

The ruling intended to be appealed was delivered on 17th November 2023 and the Motion was dated 14th May 2024, a period of over five months. The only explanation was delay in instructing counsel. The court found the applicant had been involved throughout the litigation and should have taken reasonable steps within the prescribed timelines; no reasonable explanation was offered for the lapse.

p. 3
02

Whether the intended appeal had chances of success

Holding

The court found the intended appeal had no chance of success: the ELRC judge had held there was no provision for extension of time in employment matters under section 90 of the Employment Act, and no disabling ground preventing timely filing had been demonstrated.

Reasoning

The judge below found no disabling ground established for the failure to file suit before the limitation period under section 90 of the Employment Act lapsed, and no provision of law granting power to extend time. The applicant did not tell the judge of any disability contemplated by the Employment Act that would have prevented him from moving the court on time.

p. 3

Legal principles established

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  • In deciding whether to grant an extension of time, the Court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent.

Court orders

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  1. 1.The Motion dated 14th May 2024 seeking extension of time to file and serve the Notice of Appeal and letter requesting typed proceedings was dismissed
  2. 2.Costs of the Motion awarded to the respondent

Authorities

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Legislation

  • The Court of Appeal Rules, 2010rule 4
  • The Court of Appeal Rules, 2010rule 47
  • The Court of Appeal Rules, 2010rule 77
  • Employment Act, 2007section 90

Cases cited (1)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
On appeal from
Employment and Labour Relations Court, Nairobi
ELRC Misc. Application No. 205 of 2023
Jurisdiction invoked
Rules 4 and 47 of the Court of Appeal Rules, 2010 (extension of time to file Notice of Appeal and request for typed proceedings)

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, "Munyua v ABSA Bank Kenya PLC (Civil Application E243 of 2024) [2024] KECA 892 (KLR)", Case Analysis (2024). Nairobi Employment and Labour Relations Court Misc. Application No. 205 of 2023 (intended appeal; Motion under rules 4 and 47 of the Court of Appeal Rules, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/892/eng@2024-07-26

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