Herbert Muchelule v Seneca East Africa Limited Formally Sentry Security Limited [2022] KEELRC 1048 (KLR)
The bottom line
#A Kenyan employment court refused to extend time to appeal because the applicant filed no draft appeal and waited about three years.
What this practically means
#Executive summary
#Key legal issues
#Requirement of a draft memorandum of appeal in extension-of-time applications
The application fails because the applicant did not file a draft appeal, which is vital for the court to assess prospects of success at the outset
Relying on the Supreme Court's decision in Nicholas Kiptoo Arap Salat v IEBC, as quoted in Siaya ELC Misc Application No. 5 of 2021, the court held that a draft memorandum of appeal is a mandatory requirement in applications for extension of time, since it enables the court to determine whether the intended appeal is arguable.
Absence of prospects of success in the intended appeal
The intended appeal has no prospects of success because the impugned ruling struck out the suit as time-barred under Section 90 of the Employment Act, 2007, the claim having been filed more than seven years after termination
The ruling under challenge found the claimant was employed from 1st November 2005 until termination on 8th October 2010, yet the suit was filed on 7th March 2018, well beyond the three-year limitation period under Section 90 of the Employment Act. The applicant did not demonstrate any arguable grounds against that finding.
Explanation for the inordinate delay
Lack of legal representation and reliance on the Judiciary Ombudsman do not constitute a valid and reasonable explanation for a delay of about three years
The court acknowledged sympathy for the lay applicant who sought assistance from the Judiciary Ombudsman and cited COVID-19 difficulties, but held that being unrepresented is not a valid or reasonable cause for the extensive delay between the ruling of 18/10/2019 and the application of 21/9/2021.
Legal principles established
#- An applicant for extension of time to appeal out of time must annex a draft memorandum of appeal to demonstrate the intended appeal has prospects of success
- Lack of legal representation is not a valid and reasonable cause for inordinate delay in seeking extension of time
Court orders
#- 1.The application dated 21/9/2021 is dismissed
- 2.No order as to costs, considering the personal circumstances of the applicant
- Jurisdiction invoked
- Court's discretion to extend time under Rule 75 of the Court of Appeal Rules (as invoked by the applicant); the judgment does not expressly cite the jurisdictional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Herbert Muchelule v Seneca East Africa Limited Formally Sentry Security Limited [2022] KEELRC 1048 (KLR)", Case Analysis (2022). Miscellaneous Application (as stated on the application dated 21/9/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1048/eng@2022-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.