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Court of AppealDismissedCivil Application E115 of 2024· [2024] KECA 1894 (KLR)

Gitau v Teachers Service Commission

Court of Appeal
19 December 2024
AAA Ali-Aroni
1,410 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because claiming poverty, without proof or seeking a fee waiver, does not explain delay.

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 Nyeri on a notice of motion dated 15th October 2024 by George Kamwaro Gitau seeking extension of time to file and serve a notice of appeal and record of appeal out of time, following the judgment of the Employment and Labour Relations Court at Nyeri (Makau, J.) delivered on 31st July 2024 in Nyeri ELRC Petition No. 1 of 2022, in which the respondent, Teachers Service Commission, prevailed. The applicant relied on rules 4, 39, 42 and 43 of the Court of Appeal Rules, explaining the delay on the ground of financial strain - being, as he said, unable to meet the costs of preferring an appeal - and asserting an arguable appeal with no prejudice to the respondent. The respondent opposed through the affidavit of Antonina Lentoijoni, pointing out that the applicant had legal representation throughout, that filing a notice of appeal and requesting proceedings are minimally charged, and that the applicant is a retired teacher drawing a monthly pension. The respondent filed the only submissions, relying on Mombasa County Government vs. Kenya Ferry Services, Zarny Zahrya vs. Shalom Levi and Lither Peter Muia vs. Zuena Ngando Kababu to urge that reasons for delay must be satisfactorily explained and evidenced. Ali-Aroni, JA applied the rule 4 discretion as articulated in Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees and Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet. The court found that the applicant neither denied being a pensioner nor proved indigence, and that rule 120 permits indigent litigants to apply for waiver of fees, so financial hardship cannot justify delay. The reason advanced being unsatisfactory, the application was dismissed with costs to the respondent.

Key legal issues

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01

Whether unsubstantiated financial hardship is a satisfactory reason for delay

Holding

It is not; indigence must be proved, and the availability of fee waiver under rule 120 removes it as justification

Reasoning

The applicant claimed financial strain but did not deny being a pensioner nor prove indigence. Filing a notice of appeal and requesting proceedings are minimally charged. Rule 120 of the Court of Appeal Rules allows indigent litigants to apply for fee waivers, so financial circumstances cannot justify the delay.

p. 3
02

Principles governing extension of time under rule 4

Holding

The court applies the non-exhaustive factors in Muringa Company Ltd: length of delay, reasons, prejudice, conduct, right of appeal, public interest and arguability

Reasoning

Rule 4 confers a discretionary power to extend time. The court adopts the factors set out in Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees, which are not exhaustive, and requires the delay to be satisfactorily explained, drawing on Chemaringo vs. Kibet.

p. 3

Legal principles established

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  • The reasons for delay in filing an appeal must be plausible and satisfactorily explained to unlock the court's extension-of-time discretion
  • Indigence is not a satisfactory explanation where rule 120 permits an indigent litigant to apply for a waiver of fees

Court orders

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  1. 1.Application for extension of time dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 39
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Court of Appeal RulesRule 120

Cases cited (5)

  • Mombasa County Government vs. Kenya Ferry Services & Another
    [2019]

    Where there is a reason for delay, it should be expressed to the court's satisfaction

  • Zarny Zahrya & Another vs. Shalom Levi
    [2018] eKLR

    Any allegation or justification for the delay must be backed or verified by evidence

  • Lither Peter Muia & Another vs. Zuena Ngando Kababu
    [2019] eKLR

    Justification for delay must be backed or verified by evidence

  • Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees
    Civil Application No. 190 of 2019

    Non-exhaustive considerations in an application for extension of time

  • Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet
    [2018] eKLR

    Delay must be satisfactorily explained; no minimum or maximum period is set

On appeal from
Employment and Labour Relations Court at Nyeri
Petition No. 1 of 2022
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time jurisdiction)

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, "Gitau v Teachers Service Commission", Case Analysis (2024). Civil Application E115 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1894/eng@2024-12-19

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