Giuliano Zanette t/a Mediterraneo Restaurant v Amache (Appeal E006 of 2021) [2023] KEELRC 329 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 12-day delay in filing the memorandum of appeal was inordinate
The court held the 12-day delay, occurring during the festive season, was not inordinate and justified enlargement of time
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.
Whether the respondent would suffer prejudice if time was enlarged
No prejudice would arise since the applicant paid 50% of the decretal sum and deposited the balance in a joint interest-earning account
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.
Whether the applicant demonstrated an arguable appeal
The annexed memorandum of appeal denoted triable issues and thus an arguable appeal, without needing to show prospects of success
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.
Legal principles established
#- 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
#- 1.Enlarged time within which the memorandum of appeal should have been filed
- 2.Deemed the memorandum of appeal filed on January 22, 2021 to have been duly filed and ordered it to be served
- 3.Costs in the appeal
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.