Manase Onyimbi v Board of Management of Kenya Medical Research Institute & another [2005] KECA 44 (KLR)

The judgment frames the exercise of the Court's wide discretionary power around three settled considerations. Each must be addressed: the arguability of the intended appeal; the length and explanation of any delay in bringing the extension application itself; and the absence of undue prejudice to the respondent. The court then applies each consideration in turn to the facts before allowing the extension.

The Deputy Registrar issued a certificate of delay certifying the period from 27/11/2003 to 27/1/2005 as required for preparation and delivery of the proceedings and judgment. Under the proviso to Rule 81(1) that certified period must be excluded when computing time, with the result that the applicant had until 26/3/2005 to file the appeal. Correspondence confirmed the court file had been misplaced, so the applicant bore no culpability for the Registry's failure to supply proceedings promptly.

Once the certified period is excluded, only the delay from about 27/3/2005 to 30/6/2005 was culpable. Counsel attributed it to a mistaken belief that time had run out, which had prompted the earlier extension application, Civil Application No. NAI 80 of 2005, subsequently withdrawn on 22/6/2005. The applicant had actively pursued the Registry and his advocates to secure typed proceedings and to file the appeal in time. On those facts the court concluded the delay was neither inordinate nor inexcusable and exercised its discretion in the applicant's favour.

The court accepted the respondent counsel's criticism that the four grounds in the draft memorandum of appeal were very general and that the applicant's counsel had not identified the specific issues to be pursued in the appeal. Nevertheless, it held that the intended appeal - concerning loss of employment and the concomitant benefits - raised some grounds of law, which was sufficient to show the appeal was not frivolous at this interlocutory stage.

The respondent filed no replying affidavit and its counsel pointed only to the generality of the grounds of appeal. The court found nothing to suggest the respondent would be prejudiced if the appeal were allowed to proceed, observing that no prejudice had been shown and that none was apparent to it on the material before it. The absence of demonstrated prejudice completed the three-fold test and weighed decisively in favour of allowing the extension.