Charles Onyinge Abuso v Kenya Airports Authority & another [2017] KECA 649 (KLR)
The bottom line
#Kenya's Court of Appeal refused to excuse a nearly two-year delay in filing an appeal record, so the worker's Kshs 2.3 million award stands.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time to file the record of appeal out of the 60-day period prescribed by rule 82(1) of the Court of Appeal Rules
- 2.Whether the delay of approximately one year and seven months was inordinate and satisfactorily explained
- 3.Whether the applicant complied with the proviso to rule 82 requiring application for proceedings within 30 days and service of the bespeaking letter on the respondents
- 4.The relative prejudice to each party if the application is granted or refused
Key legal issues
#The principles governing extension of time under Rule 4 of the Court of Appeal Rules
The Court's discretion is unfettered but must be exercised judiciously on reasons; the applicant must place material before the Court on which the discretion can be exercised in his favour, and the Sila Mutiso factors (length and reason for delay, arguability, prejudice) guide — but do not exhaust — the enquiry.
The pre-1985 requirement of 'sufficient reasons' was removed, leaving the Court an unfettered discretion, but that discretion must be exercised judicially rather than on whim. Each case must be considered on its own merits in light of Article 159(2)(d) of the Constitution and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act.
Compliance with the proviso to rule 82 as a precondition to extending time
The applicant did not apply for proceedings within 30 days of the award with service on the respondents as required, so he was obliged to file the record by 18th November 2014 and could not excuse the subsequent delay by saying he awaited certified copies.
The first bespeaking letter of 13th October 2014 was not copied to or served on the respondents; the second, of 11th November 2014, was outside the 30-day window. Without compliance with the proviso, the 60-day period expired on 18th November 2014, and the resulting delay of about one year and seven months required explanation, which was not given.
Credibility of the explanation for the delay
The asserted reason — waiting for certified proceedings — was unsupported by evidence of receipt (no certificate of delay, no date given), and the more plausible reason was that the applicant waited for payment of the decretal amount before pursuing the appeal.
Even on the applicant's own account, four months elapsed between receipt of the proceedings in February 2016 and the application of 14th June 2016, unexplained in his affidavits; the claim that the proceedings had mistakes was made only from the bar without evidentiary support. The application was filed barely five days after the 1st respondent paid the decretal amount in full.
Role of arguability of the intended appeal in the extension-of-time discretion
Whether the intended appeal is arguable is not determined with finality by a single judge; the consideration is prefixed with 'possibly'.
The court noted the applicant's main intended ground — entitlement to salary and emoluments until expected retirement — appears contrary to Rawal v JSC, but declined to spend time on arguability, citing Athuman Nusura Juma v Afwa Mohamed Ramadhan and related authorities.
Legal principles established
#- The discretion to extend time under rule 4 must be exercised judiciously and on reasons, and the applicant must place material before the Court on which the discretion can be exercised in his favour
- In deciding whether to grant an extension of time the Court considers, in general, the length of the delay, the reason for the delay, the (possible) chances of the appeal succeeding, and the degree of prejudice to the respondent — considerations that are not a closed catalogue
- A single judge does not determine with finality whether an intended appeal has merits in an extension-of-time application
- An applicant who fails to comply with the proviso to rule 82 (applying for proceedings within 30 days and serving the bespeaking letter on respondents) cannot rely on waiting for certified copies of proceedings to excuse delay beyond the 60-day period
Court orders
#- 1.The application for extension of time to file the record of appeal is dismissed
- 2.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court, Mombasa
- ELRCC No. 370 of 2013 (transferred from Mombasa High Court Civil Suit No. 288B of 2009)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time; discretionary jurisdiction of a single Judge of Appeal)
Relief refused
#Extension of time to file the record of appeal
The delay of about one year and seven months was inordinate and unexplained; the applicant failed to comply with the proviso to rule 82 and offered no evidence for the further four-month delay after receiving the proceedings in February 2016
Costs
Dismissed with costs to the 1st respondent — "I have come to the conclusion that I must dismiss this application with costs to the 1 st respondent."
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
in general, the matters which this Court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly, (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted
Much as the Court has unfettered discretion, however, it is accepted that the discretion must be exercised judiciously and on reasons, rather than capriciously or on whim.
It is necessary to point out that the above are only some of the considerations and do not constitute a closed catalogue.
The delay he has occasioned is inordinate and remains unexplained.
I have come to the conclusion that I must dismiss this application with costs to the 1 st respondent. It is so ordered
Issues in the judgment
#The judgment states the delay as 'approximately one year and nine months' in one passage and 'about one year and seven months' in another; the latter (18 November 2014 to 14 June 2016) is arithmetically correct
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Onyinge Abuso v Kenya Airports Authority & another [2017] KECA 649 (KLR)", Case Analysis (2017). Civil Application (Mombasa) — Motion under Rule 4 of the Court of Appeal Rules (record not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/649/eng@2017-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.