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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedApplication dated 22nd May 2024 (arising from ELRC No. E004 of 2022)· [2024] KECA 1284 (KLR)

32 Others & 32 Others & 32 Others v Pride Inn Hotels and Investment Limited

Court of Appeal of Kenya
27 September 2024
1,819 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed an employment appeal to proceed despite a 19-day filing delay, because the appellants acted quickly to fix their procedural mistake.

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 at Mombasa (Lesiit, JA) on an application dated 22nd May 2024 under rule 4 of the Court of Appeal Rules. The applicants, whose employment dispute before Mbaru, J. in ELRC No. E004 of 2022 had gone against them, sought extension of time to file and serve a record of appeal out of time. They filed and served a notice of appeal within time on 22nd February 2024, but the ELRC registry delayed supplying certified proceedings, which were issued on 14th May 2024 with a certificate of delay. The respondent opposed, arguing not that the delay was unexplained but that the applicants failed to serve the letter bespeaking proceedings as required by rule 84(2), rendering the certificate of delay and the record of appeal defective. The applicants' counsel admitted the omission and invoked Article 159 of the Constitution. The court applied the settled rule 4 principles: length of delay, reason for delay, chances of success, and prejudice. It held the notice of appeal was not defective; that non-service of the bespeaking letter barred reliance on the certificate of delay, so time ran from the notice of appeal, making the delay 19 days; and that the applicants' prompt application for extension was a remedial measure that defeated the defectiveness objection. The respondent had not moved under rule 86 within 30 days, and such a motion lies before the full bench. Finding the intended appeal arguable and the prejudice balance favouring the applicants, the court allowed the application, extended time, and directed the record to be filed within 21 days and served within 7 days, with costs of the application to abide the appeal.

Key legal issues

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01

Extension of time to file and serve a record of appeal out of time

Holding

The application was allowed; a 19-day delay was explained in part by registry delay, the applicants took timely remedial action by seeking extension, the intended appeal was arguable, and the prejudice balance favoured the applicants

Reasoning

The court applied the settled rule 4 principles: length of delay, reason for delay, arguability of the intended appeal, and prejudice. The notice of appeal was filed and served within time and was not defective. Failure to serve the letter bespeaking proceedings meant time ran from the notice of appeal, producing a 19-day delay. The applicants sought extension of time as a remedial measure, so the record could not be condemned as defective. Grounds of appeal were neither frivolous nor idle, and the prejudice balance favoured the applicants.

p. 4
02

Effect of non-service of the letter bespeaking proceedings under rule 84(2)

Holding

Non-service bars reliance on the certificate of delay, so time is computed from the date of the notice of appeal

Reasoning

Counsel for the applicants admitted failing to serve the letter requesting proceedings. The court held that under rule 84 the applicants were barred from relying on it in computing time, so the 60-day period ran from the filing of the notice of appeal on 22nd February 2024, making the delay 19 days. The court nonetheless treated the ensuing application for extension as a proper remedial measure rather than grounds to declare the record defective.

p. 3

Legal principles established

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  • The discretion to extend time under rule 4 is wide but must be exercised judicially and is granted only where the applicant satisfies the court
  • Where a letter bespeaking proceedings is not served on the respondent as required by rule 84, the applicant cannot rely on it in computing the time for lodging the record of appeal
  • An application to strike out a record of appeal under rule 86 must be made within 30 days of service of the record and can only be heard by the full bench

Court orders

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  1. 1.The application dated 22nd May 2024 be and is hereby allowed
  2. 2.An order extending the time to file and serve the record of appeal dated 23rd May 2024 and filed on 27th May 2024
  3. 3.The applicants to file the record of appeal within 21 days of the date of the order and serve the same on the respondent within 7 days from the date of service
  4. 4.The costs of the application to abide the outcome of the appeal
On appeal from
Employment & Labour Relations Court at Mombasa
ELRC No. E004 of 2022
Jurisdiction invoked
rule 4 of the Court of Appeal Rules

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, "32 Others & 32 Others & 32 Others v Pride Inn Hotels and Investment Limited", Case Analysis (2024). Application dated 22nd May 2024 (arising from ELRC No. E004 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1284/eng@2024-09-27

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