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Court of AppealDismissedCivil Reference (Nairobi)

Ngeno & 13 others v Kenya Investment Authority (Civil Application 99 of 2016) [2025] KECA 528 (KLR)

Court of Appeal of Kenya
21 March 2025
2,865 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that claiming you were too poor to file an appeal on time is no excuse if you never used the court's fee-relief options.

What this practically means

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Executive summary

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This is a full-bench reference under rule 57(1)(b) of the Court of Appeal Rules, 2022, challenging a ruling by Kiage, JA (25th November 2016) dismissing the applicants' rule 4 application for leave to file a notice of appeal and record of appeal out of time against a judgment of the Employment and Labour Relations Court (Nduma, J) of 7th November 2014 in an unfair-termination dispute. The applicants, fourteen former employees of the defunct Invest Promotion Centre, attributed their delay to financial constraints in raising court fees of Kshs 100,800. The respondent countered that the delay was unexplained and inordinate, that fee-relief and pauper facilities existed but were not used, and that the bespeaking letter was not copied to it. The full bench restated the rule 4 principles from Penina Mongira and the standard of interference from Kenya Canners and Fakir Mohammed: a reference is not an appeal, and the full court will interfere only where the single Judge considered an irrelevant matter, ignored a relevant one, misapprehended a point of law or fact, or reached a plainly wrong decision. The Court found the applicants' unexplained serial inaction - failure to copy the bespeaking letter, to collect proceedings promptly, to seek fee assessment timeously, to pay the assessed fees, or to invoke rule 120 - justified the single Judge's conclusion. The reference was dismissed with costs on 21st March 2025, the single Judge's discretion being undisturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the full bench should interfere with the discretion of the single Judge who dismissed the applicants' rule 4 application for extension of time to file a notice of appeal and record of appeal out of time

Key legal issues

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01

Circumstances in which the full bench interferes with a single Judge's rule 4 discretion

Holding

The full bench will not interfere unless the single Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended a point of law or fact, or the decision is plainly wrong; the applicants bore the burden of establishing such a breach.

Reasoning

The Court restated the principles in Kenya Canners Ltd v Titus Muiruri Doge and Fakir Mohammed: a reference is not an appeal, the single Judge exercises the full court's power, and interference is only on sound principles. The Court found no irrelevant or omitted consideration, no misapprehension, and nothing plainly wrong in the ruling, so the applicants failed to discharge their duty of justifying interference.

p. 5
02

Adequacy of the applicants' explanation of financial constraints for the delay

Holding

Financial constraint was not a legitimate excuse because the applicants failed to resort to rule 120 (fee relief) or copy their bespeaking letter to the respondent to gain rule 84 benefit, and the money deposited sat in the advocate's account while further delay followed.

Reasoning

The Court noted the single Judge had correctly identified multiple stages of inaction: delay in collecting certified proceedings, delay in seeking fee assessment, non-payment into court, failure to seek Registrar's relief, and further delay after deposit. These omissions were unexplained, so the single Judge was entitled to find the delay inordinate and unexplained.

p. 5

Legal principles established

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  • A reference to the full bench is not an appeal; the full court interferes with a single Judge's rule 4 discretion only where the Judge took into account an irrelevant matter, failed to take into account a relevant one, misapprehended a point of law or fact, or the decision is plainly wrong.
  • On a reference, the full bench does not re-decide whether the single Judge's conclusion was correct; it interferes only where the conclusion is one no reasonable tribunal could reach.
  • An unexplained delay cannot be excused regardless of its length, and inaction in the absence of explanation is inferred to be deliberate; the certificate of delay is in practice prepared by the advocate, and its absence is not a bar to the exercise of rule 4 discretion.

Court orders

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  1. 1.The reference is dismissed with costs
  2. 2.It is so ordered (dated and delivered at Nairobi, 21st March 2025)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Court of Appeal of Kenya (decision of a single Judge, Kiage, JA)
Jurisdiction invoked
Rule 57(1)(b) of the Court of Appeal Rules, 2022 - reference against a decision of a single Judge under rule 4

Relief refused

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Overturning of the single Judge's dismissal of the application for leave to file and serve a notice of appeal and record of appeal out of time

The applicants failed to show that the single Judge took into account an irrelevant matter, failed to take into account a relevant one, misapprehended a point of law or fact, or arrived at a plainly wrong decision

p. 5

Costs

The reference is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we find no merit in this reference which we hereby dismiss with costs.
p. 6Final orders - dismissal of the reference
A reference to the full court is not an appeal although it is in the nature of one and in exercising the discretion under rule 4, the single judge was exercising the power on behalf of the full court and his discretion would not therefore be easily upset except on sound principles
p. 4Standard of interference on a reference
It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary and it is also well settled that in general the matters which the Court of Appeal takes into account in deciding whether to grant an extension are: first, the length of the delay; secondly the reason for the delay; thirdly, (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.
p. 4Guiding principles for extension of time under rule 4
The certificate of delay is in practice prepared by the concerned advocate and sent to the Deputy Registrar to verify and sign.
p. 5Certificate of delay

Issues in the judgment

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minor

The judgment contains duplicated passages within the Penina Mongira quotation, restating the same principles twice verbatim within one block quote.

minor

The affidavit chronology states a letter of 10th November 2016 seeking proceedings received on 21st July 2015, dates internally inconsistent (request after receipt).

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, "Ngeno & 13 others v Kenya Investment Authority (Civil Application 99 of 2016) [2025] KECA 528 (KLR)", Case Analysis (2025). Civil Reference (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/528/eng@2025-03-21

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