Nadite & 19 others v National Police Service Commission (Petition 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 & 36 of 2018 (Consolidated)) [2023] KEELRC 2366 (KLR)
The bottom line
#The ELRC cannot extend time for filing an appeal record in the Court of Appeal — only the Court of Appeal itself can, so the application failed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC to extend time for filing a record of appeal to the Court of Appeal
The Court lacks jurisdiction; the power is reposed in the Court of Appeal under rule 4 of the Court of Appeal Rules, 2010.
A notice of appeal had been lodged on 19 March 2019, but the record of appeal was never filed within the prescribed time. The applicant invoked the court's discretion to enlarge time, but under rule 4 of the Court of Appeal Rules, 2010 that power vests in the Court of Appeal itself. The applicant pointed to no express statutory provision conferring such jurisdiction on this Court, and without express statutory clothing the Court could not exercise it.
Whether the Court would in any event have exercised discretion in the applicant's favour
Even assuming jurisdiction, the discretion would not have been exercised for the applicant because she failed to disclose when she learnt the Record of Appeal had not been filed.
The applicant alleged she only discovered the failure to file the Record of Appeal upon visiting the registry, but did not state when that visit occurred. The Court held such disclosure was necessary and material to the exercise of the discretion, and its absence disentitled her to the extension even if jurisdiction existed.
Leave for Kithi & Co. Advocates to come on record
Leave was granted in the interest of doing justice on the merits.
The Court observed that without such leave the application would be a non-starter, and in order to do justice on the merits granted the incoming firm leave to come on record for the applicant, before proceeding to dismiss the substantive motion on jurisdictional grounds.
Legal principles established
#- The power to extend time for filing a record of appeal under rule 4 of the Court of Appeal Rules, 2010 is reposed in the Court of Appeal, not the ELRC.
- An applicant for extension of time must disclose the date when she found out that her advocate had not filed the Record of Appeal, as such disclosure is necessary and material.
Court orders
#- 1.Leave granted to the firm of Kithi & Co. Advocates to come on record for the applicant
- 2.The motion dated 5 June 2023 is dismissed with costs
- Jurisdiction invoked
- The court found no express statutory provision clothing it with jurisdiction to enlarge time for filing a record of appeal in the Court of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nadite & 19 others v National Police Service Commission (Petition 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 & 36 of 2018 (Consolidated)) [2023] KEELRC 2366 (KLR)", Case Analysis (2023). ELRC Petition No. 26 of 2018 (Motion dated 5 June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2366/eng@2023-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.