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Court of AppealAllowedCivil Application (Motion) seeking extension of time to lodge Notice of Appeal and Memorandum of Appeal, relating to Civil Appeal E850 of 2023· [2024] KECA 982 (KLR)

Mbogho v National Water Conservation & Pipeline Corporation (Civil Application E516 of 2023) [2024] KECA 982 (KLR)

Court of Appeal of Kenya
26 July 2024
SKS. ole Kantai
1,001 words in judgment
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The bottom line

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Kenya's Court of Appeal extended appeal time where the delay was caused by the court's slow preparation of proceedings, not the appellant.

What this practically means

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Executive summary

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This is a single-judge in-chambers decision of the Court of Appeal at Nairobi, delivered by S. ole Kantai, JA, on 26th July 2024, on a Motion under Section 4 of the Appellate Jurisdiction Act by Miriam Chari Mbogho. She sought enlargement of time to lodge a Notice of Appeal and Memorandum of Appeal against a ruling of the trial court (Employment and Labour Relations Court) delivered on 2nd June 2022, which corrected an arithmetical error in her favour in an unlawful-termination award (raising unpaid reimbursement claims from Kshs.712,484 to Kshs.793,161) but dismissed her prayer for Kshs.54,898,849.60 in forfeited benefits. She filed a Notice of Appeal and letter bespeaking proceedings on 6th June 2022, but the trial court took 500 days to prepare the proceedings, issuing a Certificate of Delay on 19th October 2023. The appeal, Civil Appeal E850 of 2023, was filed on 26th October 2023. Applying the classic Leo Sila Mutiso v Rose Hellen Wangari Mwangi principles (length of delay, reason for delay, arguability, and prejudice), the court found no culpable delay: the delay was attributable to the court's late preparation of proceedings, the draft memorandum disclosed seven reasonable grounds, and the respondent, having been served with the Notice of Appeal, would suffer no prejudice. The application was unopposed, with no replying affidavit or submissions. Time was extended, the appeal was deemed properly filed and served, and costs of the Motion were made costs in the appeal. There was no decision on the merits of the underlying appeal.

Key legal issues

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01

Extension of time to lodge an appeal where the delay is attributable to the court's late preparation of proceedings

Holding

Extension of time granted where a Notice of Appeal was filed promptly, proceedings took 500 days to be prepared and a Certificate of Delay was issued, and the respondent would suffer no prejudice.

Reasoning

The applicant filed her Notice of Appeal and letter bespeaking proceedings on 6th June 2022, immediately after the impugned ruling of 2nd June 2022, and served the respondent. A Certificate of Delay issued on 19th October 2023 confirmed that the trial court took 500 days to prepare proceedings, making the explanation for delay reasonable. The draft memorandum of appeal raised seven reasonable grounds, and the respondent, having been notified of the intention to appeal, could not be prejudiced.

Legal principles established

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  • Whether or not to extend time for appealing is discretionary, and the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.Time enlarged within which to lodge the Notice of Appeal and Memorandum of Appeal
  2. 2.Appeal Number E850 of 2023, Miriam Chari Mbogho v National Water Conservation & Pipeline Corporation, filed on 26th October 2023, deemed properly filed and served
  3. 3.Costs of the Motion to be in the appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 4

Cases cited (1)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
On appeal from
Employment and Labour Relations Court (trial court)
null
Jurisdiction invoked
Section 4 of the Appellate Jurisdiction Act

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, "Mbogho v National Water Conservation & Pipeline Corporation (Civil Application E516 of 2023) [2024] KECA 982 (KLR)", Case Analysis (2024). Civil Application (Motion) seeking extension of time to lodge Notice of Appeal and Memorandum of Appeal, relating to Civil Appeal E850 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/982/eng@2024-07-26

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