Saleh Kiplagat Chebi v Centre for African Family Studies (CAFS) [2019] KECA 148 (KLR)
The bottom line
#The Court of Appeal dismissed an employee's bid to revive a late appeal, confirming that unexplained delay costs you your day in court, no matter how strong the appeal.
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 single judge (Okwengu, JA) properly exercised her discretion in declining to extend time for filing the Notice and Record of Appeal
- 2.Whether the single judge properly declined to vary the timelines set in the ruling of Warsame, JA
Key legal issues
#Whether the single judge properly exercised her discretion in declining extension of time
The full bench affirmed the single judge's decision, finding she considered all the facts and evidence and that the applicant's explanation for the delay was inexcusable
The court applied the settled principles from Gitetu v Kenya Commercial Bank Ltd: period of delay, reason for delay, prejudice to the respondent, and arguability of the intended appeal. The single judge found the medical report did not prove the applicant was bedridden, and that filing a notice and record of appeal are functions ordinarily performed by advocates, so the applicant could simply have instructed counsel. The delay of four years since the Industrial Court ruling, and the failure to comply with the earlier 7-day timeline, were found inexcusable.
The standard for interference with a single judge's discretionary decision on reference
An appellate court will not interfere with the exercise of a judge's discretion unless the judge misdirected himself, acted on wrong matters, or failed to consider relevant matters, arriving at a wrong conclusion causing injustice
Relying on Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others, the court held that a single judge acts on behalf of the full court, and the reference bench can interfere only under the Gitetu principles, reinforced by the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat v IEBC emphasizing the discretionary and burden-laden nature of extension applications. No misdirection was demonstrated here.
Legal principles established
#- Extension of time is not a party's right but a discretionary remedy available only to a deserving party, and an applicant bears the burden of explaining any delay to the satisfaction of the court.
- Where there is no reasonable explanation for delay, an extension of time ought not normally be granted even if the intended appeal is arguable.
- A full bench on reference cannot interfere with a single judge's discretion unless it is shown the judge misdirected herself or was clearly wrong, resulting in injustice.
Court orders
#- 1.The reference from the decision of the single judge declining extension of time is dismissed
- 2.Costs of the reference awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal (decision of single judge, Okwengu, JA)
- Industrial Cause No. 585 of 2012 (underlying Industrial Court judgment)
- Jurisdiction invoked
- Reference to a full Bench of the Court of Appeal from a decision of a single judge under the Court of Appeal Rules
Relief refused
#Extension of time to file and serve Notice and Record of Appeal
The applicant failed to give a plausible explanation for the inordinate delay; the medical evidence did not prove he was bedridden and filing could have been done by his advocate
Review or variation of the timelines set in the ruling of Warsame, JA dated 21st September 2015
No justification was shown for varying the timelines previously set by the single judge
Costs
The reference was dismissed with costs to the 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.
It is trite that extension of time is not a party’s right. It is a discretionary remedy that is only available to a deserving party.
In the absence of reasonable explanation, even where the appeal is arguable, the Court ought not normally grant an extension of time to file the appeal.
In the circumstances, we find that this reference is devoid of merit and dismiss it with costs.
Accordingly, we find no good reason to fault the learned Judge who upon weighing the interests of both parties declined to grant the orders sought in the application for extension of time to file the appeal.
Issues in the judgment
#The judgment gives inconsistent dates for the respondent's replying affidavit, referring to it as both 20th October 2017 and 30th October 2017
The applicant's name is spelled inconsistently: 'CHEBI' in the title versus 'Chebii' in paragraph 1
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saleh Kiplagat Chebi v Centre for African Family Studies (CAFS) [2019] KECA 148 (KLR)", Case Analysis (2019). Civil Application No 234 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/148/eng@2019-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.