Seyani Brothers & Co (K) Limited v Albanus Mwangi Muia (Miscellaneous Application E090 of 2021) (Employment and Labour) [2021] KEELRC 52 (KLR)
The bottom line
#A Kenyan court refused to extend appeal timelines because the appeal had not actually been filed yet — you cannot ask the court to admit an appeal that doesn't exist.
What this practically means
#Executive summary
#Key legal issues
#Whether extension of time can be granted before the appeal is filed
No - the proviso to Section 79G presupposes a filed appeal; an application brought before the Memorandum of Appeal is filed is an abuse of process and a non-starter
Relying on its own prior decision in Caddel Construction Company Limited v Elias Maina Kariuki and the Court of Appeal's decision in Charles Karanja Kiiru v Charles Githinji Mugwe, the court held that admission out of time presupposes an appeal already on record. The applicant admitted the Memorandum of Appeal was unpaid and unfiled, and did not demonstrate it had applied for certified copies of the judgment and proceedings.
Whether the applicant demonstrated good and sufficient cause for the delay
The court did not reach this issue, dismissing the application on the threshold ground that no appeal existed
Having found the application an abuse of process because it was filed before any appeal existed, the court expressly declined to consider the other issues raised, including the claimed Covid-19 related delay and the allegation that the lower court lacked jurisdiction. The respondent's allegations of material non-disclosure and participation in a consent judgment on liability were therefore also not determined.
Legal principles established
#- An applicant seeking admission of an appeal out of time under the proviso to Section 79G must first have filed the appeal; the Court cannot exercise its discretion to admit a non-existent appeal
- An extension-of-time application filed before the appeal is filed is an abuse of the court process and a non-starter
Court orders
#- 1.The Notice of Motion dated 4th May, 2021 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Chief Magistrate's Court, Nairobi Milimani
- NAIROBI MILIMANI CMCC NO. 9114 OF 2017
- Jurisdiction invoked
- Section 79G of the Civil Procedure Code (proviso on admission of appeals out of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seyani Brothers & Co (K) Limited v Albanus Mwangi Muia (Miscellaneous Application E090 of 2021) (Employment and Labour) [2021] KEELRC 52 (KLR)", Case Analysis (2021). Misc Application No E090 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/52/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.