Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application E017 of 2022

Union of Kenya Civil Servants v Nyamato & 2 others

Court of Appeal
7 October 2022
1,075 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal gave a trade union 60 more days to file its appeal, ruling a 55-day delay was excusable.

What this practically means

#

Executive summary

#
This is a single-judge ruling of the Court of Appeal at Nairobi by Sichale, JA, on a motion dated 5th January 2022 by the Union of Kenya Civil Servants seeking leave to file and serve a Notice and Record of Appeal out of time against a ruling of Mboya, J delivered on 11th November 2021 in ELC Case No. 1222 of 2007. The application was brought under Sections 3, 3A, 3B and 5 of the Appellate Jurisdiction Act and Rules 4, 42 and 43 of the Court of Appeal Rules 2010. The applicant explained that its former official failed to communicate the ruling after internal elections, causing a fall-out and internal wrangles, and that the union needed to hold an internal meeting before instructing its advocate; part of the delay also fell within the court vacation. The respondents did not respond, though the 2nd respondent filed submissions the court found irrelevant. Applying the Fakir Mohamed principles - length of delay, cause of delay, possibility of the appeal succeeding, and prejudice - the court found the roughly 55-day delay not inordinate and satisfactorily explained, the draft Memorandum of Appeal arguable, and prejudice demonstrated. The motion was allowed in terms of prayers 2 and 3, with the Notice and Record of Appeal to be filed and served within 60 days failing which the orders would stand vacated, and costs of the motion to abide the outcome of the intended appeal. This ruling does not disturb the High Court's decision; it only opens the door to an appeal.

Questions the Court framed

#

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

  1. 1.Whether the applicant should be granted leave to file and serve the Notice and Record of Appeal out of time under Rule 4
  2. 2.Whether the delay of about 55 days was inordinate and sufficiently explained
  3. 3.Whether the intended appeal is arguable and whether prejudice would be suffered if the extension is not granted

Key legal issues

#
01

Extension of time under Rule 4

Holding

A delay of about 55 days was not inordinate and was satisfactorily explained by internal wrangles within the applicant and the court vacation; the extension was granted.

Reasoning

The court applied the Fakir Mohamed principles: length of delay, cause of delay, possibility of the appeal succeeding, and prejudice. The 55-day delay was held not inordinate; internal wrangles after the applicant's elections and the court vacation between 21st December 2021 and 13th January 2022 explained the delay. The draft memorandum of appeal showed an arguable appeal, and prejudice to the applicant if the motion was refused was demonstrated.

p. 2
02

Arguability of the intended appeal

Holding

The draft Memorandum of Appeal disclosed an arguable appeal worthy of consideration, though the single judge refrained from expressing more to avoid embarrassing the full bench.

Reasoning

In assessing the possibility of the appeal succeeding, the judge examined the annexed draft Memorandum of Appeal and was satisfied it raised arguable issues. The judge expressly cautioned against saying more, recognising that a single judge on a Rule 4 application must not pre-judge the appeal that will later come before the full Court.

Legal principles established

#
  • The Court has wide and unfettered discretion under Rule 4 to extend time, to be exercised judiciously, considering the length and cause of the delay, the possibility of the appeal succeeding and prejudice to the parties.

Court orders

#
  1. 1.The applicant's motion dated 5th January 2022 is allowed in terms of prayers 2 and 3
  2. 2.The applicant to file and serve the Notice and Record of Appeal within 60 days from the date of the ruling, failing which the orders shall stand vacated
  3. 3.Costs of the motion to abide the outcome of the intended appeal

The bench

#

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

majority

Wrote the judgment

On appeal from
High Court
ELC Case No. 1222 of 2007
Jurisdiction invoked
Sections 3, 3A, 3B and 5 of the Appellate Jurisdiction Act (CAP 9) and Rules 4, 42 and 43 of the Court of Appeal Rules 2010

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.

Accordingly, the applicant’s motion dated 5th January 2022 is meritorious and the same is hereby allowed in terms of prayers 2 and 3.
p. 3disposition - extension of time granted
The applicant will file and serve the Notice and Record of Appeal within 60 days from the date of this ruling failure to which these orders shall stand vacated.
final orders - conditional timeline
The costs of this motion shall abide the outcome of the intended appeal. Orders accordingly.
p. 3costs
the length of the delay, the causes of the delay, the possibility of the appeal succeeding and prejudice to be occasioned to the parties.
p. 2Rule 4 principles as laid down in Fakir Mohamed

Issues in the judgment

#
minor

Discrepancy between applicant's claimed ~30-day delay and the court's finding of about 55 days.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Union of Kenya Civil Servants v Nyamato & 2 others", Case Analysis (2022). Civil Application E017 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1060/eng@2022-10-07

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