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Court of AppealDismissedCivil Application No. NAI.107 of 2011

Lucas Odonya (Suing on his behalf and on behalf of 42 Others (All being former employees of the Rift Valley Railways (Kenya) Ltd v Rift Valley Railways (Kenya) Ltd [2013] KECA 456 (KLR)

Court of Appeal of Kenya
12 July 2013
JMJ. W. MweraPhilomena Mbete MwiluP. M. MwiluSGS. Gatembo-Kairu
1,907 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed 43 former railway workers' bid for more time to appeal, confirming courts won't excuse unexplained delays in filing appeals.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on a reference to the full bench, by which Lucas Odonya and 42 other former employees of Rift Valley Railways (Kenya) Ltd sought to overturn a single judge's (Bosire JA) refusal to extend time for lodging a notice of appeal and record of appeal. The intended appeal was against a judgment of Rawal J delivered on 3rd December 2010 in HCCC No. 33 of 2009, in which the former employees, declared redundant after transfer from Kenya Railways Corporation under a concession agreement, were awarded one month's salary and interest. The applicants explained their delay on the basis that they had waited for the judgment payments and had needed time to mobilise 43 scattered applicants to give instructions. The full court, comprising Mwera, Mwilu and Gatembo-Kairu JJ.A., restated the governing test from the Mombasa Development Ltd case: although a reference is not an appeal, it is in the nature of one, and the applicant must show that the single judge took into account an irrelevant matter, failed to take a relevant matter into account, misapprehended the law or facts and so misapplied the law, or that his decision was plainly wrong. The court also recalled the Rule 4 considerations of length of delay, chances of success and prejudice to the respondent, and held that the discretion is not intended to aid the indolent. Finding that counsel had not demonstrated any error by the single judge, the court affirmed his decision and dismissed the reference with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.What must an applicant demonstrate on a reference to the full bench against a single judge's decision refusing extension of time
  2. 2.Whether the learned single judge properly exercised his discretion under Rule 4 in refusing to extend time for lodging the notice of appeal and record of appeal
  3. 3.Whether the applicants' delay was explained and excusable, and whether granting the prayers would prejudice the respondent

Key legal issues

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01

The threshold for succeeding on a reference to the full court from a single judge's decision

Holding

Although a reference is not an appeal, it is in the nature of one; the applicant must show the single judge took into account an irrelevant matter, failed to consider a relevant matter, misapprehended the law or facts, or that the decision is plainly wrong.

Reasoning

The court adopted the governing regime in the Mombasa Development Ltd case, paraphrasing five grounds of attack on the single judge's decision. It held that counsel for the applicants failed to demonstrate any of these errors, and that the single judge had considered all the relevant facts, law and circumstances and gave reasons at every stage.

p. 4
02

Exercise of discretion to extend time under Rule 4

Holding

The Rule 4 discretion exists to assist a party whose delay is inadvertent or excusable; it is not intended to aid the indolent. The relevant considerations are the length of delay, the chances of the appeal succeeding, and the prejudice to the respondent.

Reasoning

The court noted the single judge was aware of his discretion under Rule 4 and that the delay here - waiting for payment before appealing, mobilising 42 scattered applicants before filing a simple notice of appeal, and failure to serve the motion - was not satisfactorily explained. Allowing the prayers would prejudice the respondent.

p. 3
03

Application of the principles to the facts of this reference

Holding

The reference was dismissed because the applicants did not demonstrate error by the single judge, whose dismissal of the extension-of-time motion was a proper exercise of discretion.

Reasoning

The full bench reviewed the single judge's reasoning on delay, the lack of service on the respondent, and the draft memorandum's failure to attack Rawal J's decision. It concluded that the learned judge properly exercised his discretionary power under Rule 4 and came to the right conclusion, and that allowing the prayers would prejudice the respondent.

p. 4

Legal principles established

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  • On a reference from a single judge's decision, the applicant must show that the single judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the law or the facts and hence misapplied the law, or that his decision is plainly wrong.
  • The discretion to extend time under Rule 4 is not available to aid indolent litigants who cannot satisfactorily explain their delay.
  • In considering whether to extend time, the court considers the length of the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.Dismissal of the reference to the full bench
  2. 2.Costs of the reference awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JM
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluJA
Currently serving
majority
SG
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 33 of 2009
Jurisdiction invoked
Rules 4, 47 and 55 of the Court of Appeal Rules - reference to the full bench against a single judge's decision on extension of time

Relief refused

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Extension of time to lodge the notice of appeal (thirty days) and the record of appeal (sixty days)

The applicants did not demonstrate that the single judge erred under the Mombasa Development Ltd criteria; the delay was long and unexplained, and granting the prayers would prejudice the respondent

p. 4

Costs

In the result we dismiss this reference with costs - costs awarded to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Although such a reference is not an appeal, it is in the nature of one. By dint of Rule 54(1) of the Rules, a dissatisfied party may seek to have the decision of a single judge varied, discharged or reversed by the full court.
p. 4Nature of a reference to the full court
The exercise of the power under Rule 4 is not intended to aid the indolent and those who cannot satisfactorily explain a given delay to take essential steps in filing notice of appeal and/or the appeal itself.
p. 3Rule 4 discretion not for the indolent
In the result we dismiss this reference with costs.
p. 4Disposition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lucas Odonya (Suing on his behalf and on behalf of 42 Others (All being former employees of the Rift Valley Railways (Kenya) Ltd v Rift Valley Railways (Kenya) Ltd [2013] KECA 456 (KLR)", Case Analysis (2013). Civil Application No. NAI.107 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/456/eng@2013-07-12

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