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ELRCAllowedNotice of motion application dated March 10, 2022· [2023] KEELRC 329 (KLR)

Giuliano Zanette t/a Mediterraneo Restaurant v Amache (Appeal E006 of 2021) [2023] KEELRC 329 (KLR)

High Court of Kenya
10 February 2023
1,814 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court allowed a restaurant to file its appeal 12 days late, finding the festive-season delay excusable and the former employee fully protected by paid decretal sums.

What this practically means

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Executive summary

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The applicant, Giuliano Zanette t/a Mediterraneo restaurant, moved the court by notice of motion dated March 10, 2022 seeking enlargement of time within which to file its memorandum of appeal against a judgment of Hon D O Mbeja, Senior Resident Magistrate, delivered on December 11, 2020 in an employment dispute, and an order deeming the memorandum of appeal filed on January 22, 2021 to have been duly filed. The applicant explained the 12-day delay as an error in computation of time during the festive season, and showed compliance with the subordinate court's stay conditions by paying 50% of the decretal sum and depositing the balance in a joint interest-earning account. The respondent opposed, arguing the application was an abuse of process and that the applicant had not demonstrated an arguable appeal, relying on authority that appellate courts should be hesitant to disturb trial court factual findings. Applying the settled considerations - length of delay, prejudice, public importance and arguability - the court found the 12-day delay not inordinate given the festive season, no prejudice to the respondent given the decretal sums paid or secured, and triable issues disclosed in the annexed memorandum of appeal. The court allowed the application, enlarged time, deemed the memorandum of appeal duly filed and ordered it served, with costs in the appeal. Judgment delivered virtually at Nairobi on February 10, 2023 by Anna Ngibuini Mwaure, Judge.

Key legal issues

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01

Whether the 12-day delay in filing the memorandum of appeal was inordinate

Holding

The court held the 12-day delay, occurring during the festive season, was not inordinate and justified enlargement of time

Reasoning

The court weighed the period of delay, noting an appeal should be filed within 30 days of judgment delivered on December 11, 2020, with the memorandum filed 12 days late. Considering the delay fell over the festive season, the court found it neither inordinate nor unexplained, being attributable to an error in computation of time by the applicant's side.

p. 3
02

Whether the respondent would suffer prejudice if time was enlarged

Holding

No prejudice would arise since the applicant paid 50% of the decretal sum and deposited the balance in a joint interest-earning account

Reasoning

The court observed that pursuant to the subordinate court's stay-of-execution conditions, the applicant paid half the decretal sum and deposited the balance in a joint interest-earning account held by both advocates. Compliance with those conditions demonstrated good faith and meant the respondent was fully secured regardless of the appeal's outcome.

p. 3
03

Whether the applicant demonstrated an arguable appeal

Holding

The annexed memorandum of appeal denoted triable issues and thus an arguable appeal, without needing to show prospects of success

Reasoning

The court reiterated that the test is arguability, not certainty of success. The applicant had annexed a record of appeal and memorandum of appeal raising issues such as whether the respondent deserted work and had been given annual leave routinely, which the court found sufficient to denote triable issues justifying enlargement of time.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy, not a right, available to a deserving party at the court's discretion
  • In considering enlargement of time the court considers the period of delay, prejudice to the respondent, public importance and whether the appeal is arguable
  • The right of appeal is a constitutional right and a delayed but explained delay should not defeat deserving litigants
  • An arguable appeal need only raise triable issues, not demonstrate probable success

Court orders

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  1. 1.Enlarged time within which the memorandum of appeal should have been filed
  2. 2.Deemed the memorandum of appeal filed on January 22, 2021 to have been duly filed and ordered it to be served
  3. 3.Costs in the appeal

Authorities

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Legislation

  • Civil Procedure Actsection 79 (cited as 'section 790')
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Charles Karanja Kiiru vs Charles Githinji Muigwa
    2017 eKLR
  • China Zhongxing Construction Company Ltd vs Arun Akuro Sophia
    (2020) eKLR
  • Peter vs Sundan Post ltd
    (1958) E A 424
  • Kamlesh Mansukhalal Damji Pattin vs Director of Public Prosecution & 3 Others
    2015 eKLR
  • Factory Guard Limited vs Abel Vundi Kitungi
On appeal from
Subordinate court (Senior Resident Magistrate)
null
Jurisdiction invoked
Appellate supervisory jurisdiction over appeals from the subordinate court; memorandum of appeal to be filed within 30 days under section 79 of the Civil Procedure Act as cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Giuliano Zanette t/a Mediterraneo Restaurant v Amache (Appeal E006 of 2021) [2023] KEELRC 329 (KLR)", Case Analysis (2023). Notice of motion application dated March 10, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/329/eng@2023-02-10

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