Mabel Kibore v National Oil Corporation of Kenya Limited
The bottom line
#Kenya's Court of Appeal struck out National Oil's appeal because it missed the 60-day filing deadline, meaning the original employment ruling can now be enforced.
What this practically means
#Executive summary
#Key legal issues
#Service of the request for proceedings as a condition for exclusion of time under the proviso to rule 82(1)
The respondent failed to demonstrate service of its letter requesting certified proceedings on the applicant's counsel, and therefore cannot benefit from the proviso to rule 82(1) excluding preparation time.
The letter requesting proceedings bore no stamp of the applicant's counsel, was not copied to them, and no return of service or affidavit particulars showed who served or received it. The court treated this as a misstep in the filing of the appeal with the direct consequence that the preparation period cannot be excluded from the computation of the 60 days for lodging the record of appeal.
Effect of failure to institute an appeal within 60 days - rule 83 deemed withdrawal
Where an appeal is not instituted within the appointed time, the notice of appeal is deemed withdrawn under rule 83, and the court may strike it out notwithstanding the 30-day limitation in rule 84.
The court adopted the explanation of rule 83 in Mae Properties Limited v Joseph Kibe, that a notice of appeal dies a natural death after 60 days unless the appeal is lodged or time extended. Since the respondent could not benefit from the proviso to rule 82(1) and had not lodged its record of appeal by about 8th January 2018, the notice of appeal was already deemed withdrawn and rule 84's 30-day limitation could not save it.
Legal principles established
#- A party seeking to benefit from the proviso to rule 82(1) (exclusion of time for preparation of proceedings) must demonstrate service of the request for proceedings on the opposite party; absent proof of service, no exclusion applies.
- A notice of appeal lapses if the appeal is not instituted within 60 days (or the extended period under the proviso to rule 82(1)), and is deemed withdrawn under rule 83; the court may then strike it out on its own motion or on application.
Court orders
#- 1.The Notice of Appeal dated 8th November 2017 is struck out with costs
- 2.The stay of execution orders of this Court issued on 23rd February 2018 are vacated
- On appeal from
- Employment and Labour Relations Court
- ELRC No. 1993 of 2017
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal under rules 42(1), 75, 82(1) and (2), 83 and 84 of the Court of Appeal Rules (application to strike out a Notice of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mabel Kibore v National Oil Corporation of Kenya Limited", Case Analysis (2019). Civil Application No. 268 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/411/eng@2019-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.