Warutere v Open World Limited (Cause 586 of 2013) [2024] KEELRC 411 (KLR)
The bottom line
#The Employment Court refused an employer's late appeal because it waited two and a half years without a credible explanation, and must now pay the judgment plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the inordinate delay of two years and five months in seeking leave to appeal out of time was sufficiently explained
The delay was inordinate and unexplained; the Applicant was untruthful about the reasons, having learned of the judgment long before it claimed, and had taken no steps towards an appeal
The court found the Applicant's account contradicted by the erstwhile advocates' application to cease acting, which showed a lack of instructions. The Applicant had not sought typed proceedings, a certified judgment, or prepared a draft memorandum of appeal, showing no genuine intention to appeal. The delay of two-and-a-half years was only explained as a long slumber. Clean hands were also absent.
Whether the court should exercise its discretion under section 7 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules to extend time
The discretion was declined; the application failed on the period of delay, the reason for the delay, arguability and prejudice considerations
The court adopted the factors in Mwangi v Kenya Airways Ltd and Edith Gichugi Koine as set out in Samuel Mwaura Muthumbi. Applying them, the period of delay was excessive, the reasons untruthful and insufficient, no arguable appeal was demonstrated (no draft memorandum), and the Claimant would be prejudiced by continued denial of the fruits of his judgment.
Legal principles established
#- A party seeking discretionary orders must come to court with clean hands
- In an extension-of-time application the court considers the period of delay, the reason for the delay, the arguability of the appeal, prejudice to the respondent, the importance of compliance with time limits, and the effect on the administration of justice
Court orders
#- 1.Dismissal of the Notice of Motion dated 28th June 2022
- 2.Costs of the application to the Claimant/Respondent
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warutere v Open World Limited (Cause 586 of 2013) [2024] KEELRC 411 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/411/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.