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ELRCAllowedNot stated in the judgment· [2023] KEELRC 1554 (KLR)

Nthokoi v Fuel Net Company Limited (Employment and Labour Relations Cause E122 of 2022) [2023] KEELRC 1554 (KLR)

High Court of Kenya (not expressly named in the judgment)
16 June 2023
AMAnna N. Mwaure
872 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a Notice of Motion dated August 16, 2022 in which the applicant sought leave to file an intended appeal out of time against a ruling delivered on May 20, 2022, on the respondent's application dated July 26, 2021. The application was supported by an affidavit of Ronald Onyango, who deponed that the applicant only obtained copies of the typed proceedings and ruling on July 2, 2022, and annexed a draft memorandum of appeal. The respondent opposed the application through submissions dated January 10, 2023, contending that no explanation had been given for the delay. The court, considering submissions dated January 31, 2023, restated the settled principles governing extension of time drawn from Thuita Mwangi v Kenya Airways Limited and Kiptoo Korir Arap Salat v IEBC: the period of and reason for delay, arguability of the appeal, prejudice to the respondent, importance of compliance with time limits, and effect on the administration of justice. The court held that the delay was not unreasonably long and was explained by the late receipt of proceedings; the further unexplained delay of about one and a half months was not excessive and would be excused in the interest of justice. Perusing the draft memorandum, the court found the intended appeal arguable, noting that even one arguable point suffices, and grounded the decision in Articles 48 and 50 of the Constitution. The court allowed the appeal to be filed out of time, directing that the memorandum of appeal and record of appeal be filed within seven days, with costs of the application in the intended appeal.

Key legal issues

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01

Whether to enlarge time to file the intended appeal against the Ruling dated May 20, 2022

Holding

Extension of time granted; the delay was not unreasonably long, an explanation was given, and the intended appeal was arguable.

Reasoning

The court applied the established principles for extension of time: length of and reason for delay, arguability, prejudice, compliance with time limits and effect on administration of justice. It found the delay from the May 20, 2022 ruling until receipt of proceedings on July 2, 2022 explained, the further unexplained period of about one and a half months not excessive, and at least one arguable ground in the draft memorandum. It declined to accept the respondent's submission that no explanation had been given and relied on the constitutional right to a hearing.

p. 2

Legal principles established

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  • Extension of time to appeal is an equitable remedy available only to a deserving party, not a right.
  • For an intended appeal to be arguable, even one arguable point suffices.

Court orders

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  1. 1.The applicant is allowed to file the appeal to the Ruling dated May 20, 2022 out of time
  2. 2.The Memorandum of Appeal whose draft is annexed to the application be filed together with the record of appeal within 7 days from the date of the ruling
  3. 3.Costs of the application to be in the intended appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (3)

  • Thuita Mwangi v Kenya Airways Limited
    Nairobi Civil Application No 162 of 2022 [2003] eKLR
  • Kiptoo Korir Arap Salat v Independent Electoral And Boundaries Commission & 7 Others
    [2014] eKLR
  • Malindi Civil Appeal No 20 of 2020
On appeal from
Not stated in the judgment
Not stated
Jurisdiction invoked
Inherent discretion to enlarge time to appeal; the court also invoked Articles 48 and 50 of the Constitution of Kenya

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, "Nthokoi v Fuel Net Company Limited (Employment and Labour Relations Cause E122 of 2022) [2023] KEELRC 1554 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1554/eng@2023-06-16

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