Irene Wairimu Gachie v Jetlak Foods Limited [2021] KECA 664 (KLR)
The bottom line
#Kenya's Court of Appeal gave a former employee more time to file her appeal because the court registry's delay — not hers — caused it.
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 lodge the record of appeal out of time under Rule 4 of the Court of Appeal Rules
- 2.Whether the period of and reasons for the delay justify the exercise of discretion
- 3.Whether the intended appeal is arguable
- 4.Whether the respondent would suffer prejudice if extension is granted
Key legal issues
#Factors governing extension of time under Rule 4
The court considers the length of and reasons for delay, arguability of the intended appeal, and prejudice to the respondent; on the facts the delay was explained by the ELRC registry's late supply of proceedings, the grounds were arguable, and the unopposed application caused no prejudice.
The court applied the Salat principles, noting the applicant timely lodged a notice of appeal and bespoked proceedings on 19 November 2018. Proceedings were only paid for on 19 September 2019 and a certificate of delay issued on 31 October 2019. The twelve proposed grounds touched on leave allowance, pension, service pay and quantum of damages, and were held to warrant the Court's interrogation. The respondent did not oppose, so no prejudice arose.
Effect of the proviso to Rule 82 on computation of the 60-day period
Where an appellant bespeaks proceedings within thirty days and serves the request on the respondent, time certified by the registrar for preparation of the copy is excluded, and a certificate of delay suffices to exclude delay beyond sixty days.
Relying on Charles Wanjohi Wathuku v Githinji Ngure & Another as restating John Mutai Mwangi & 26 Others v Mwenja Ngure & 4 Others, the court confirmed that the strict 60-day timeline under Rule 82 is tempered by the proviso where the registry's delay in typing proceedings prevents preparation of the record, as certified by a certificate of delay.
Legal principles established
#- Extension of time is not a right but an equitable, discretionary remedy, and the applicant bears the burden of laying a basis for it.
- An arguable appeal need not be one that must succeed; a single bona fide arguable ground suffices.
- Under the proviso to Rule 82, time certified by the registrar as required to prepare proceedings is excluded from the 60-day period for instituting an appeal where proceedings were bespoken within thirty days.
Court orders
#- 1.The applicant has thirty (30) days from the date of the delivery of the ruling to lodge and serve the record of appeal within the requisite timeline stipulated in the Rules for such service.
- 2.Costs of the application to abide the outcome of the intended appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court
- Nairobi ELRC Cause No. 1540 of 2013
- Jurisdiction invoked
- Rules 4 and 82 of the Court of Appeal Rules (in-chambers discretionary jurisdiction to extend time)
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.
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
The applicant has thirty (30) days from the date of the delivery of the ruling to lodge and serve the record of appeal within the requisite timeline stipulated in the Rules for such service.
Costs of the application to abide the outcome of the intended appeal.
Issues in the judgment
#The judgment inconsistently states the date of the ELRC judgment, first as 16th November 2018 and later as 'delivered on 16th November, 2010 ... on 19th November, 2018'.
The ruling also records that the registry notified the applicant on 19th June 2019 that proceedings were ready, yet she paid for them on 19th September 2019, which the judgment itself characterises as part of an 'uncontested' and plausible explanation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Irene Wairimu Gachie v Jetlak Foods Limited [2021] KECA 664 (KLR)", Case Analysis (2021). Civil Application No. 388 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/664/eng@2021-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.