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Court of AppealAllowedCivil Application E018 of 2022

Union of Kenya Civil Servants & another v Kachuwai & 2 others

Court of Appeal
26 October 2022
FSF SichaLE
1,091 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by F Sichale, JA sitting as a single judge of the Court of Appeal at Nakuru, on a motion dated April 4, 2022 by the Union of Kenya Civil Servants and Tom Mboya Odege seeking leave to lodge the record of appeal out of time against a ruling of Wasilwa J delivered on January 20, 2022 in Nakuru ELRC Petition No E016 of 2021. The application was brought under rules 41 and 47 of the Court of Appeal Rules 2010 and article 159 of the Constitution. The applicants had filed and served their notice of appeal in time, collected proceedings on March 21, 2022, and the deadline for lodging the record lapsed on April 1, 2022; the motion was therefore about 4 days late, attributed to logistical and financial difficulties. The respondents, though served with a hearing notice, did not respond or oppose. Applying the settled principles from Leo Sila Mutiso v Rose Hellen Wangari Mwangi as restated in Mwangi v Kenya Airways Limited, the judge held that a 4-day delay was not inordinate, the reasons were plausible, the draft memorandum of appeal disclosed an arguable appeal, and no prejudice to the respondents was demonstrated. The motion was allowed in terms of prayers 2 and 3: leave was granted to file the record of appeal within 30 days, failing which the orders would stand vacated, with costs of the motion abiding the outcome of the intended appeal.

Questions the Court framed

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

  1. 1.Whether the applicants should be granted leave to lodge the record of appeal out of time under rule 4
  2. 2.Whether the delay of about 4 days was inordinate and sufficiently explained
  3. 3.Whether the intended appeal is arguable and whether the respondents would suffer prejudice

Key legal issues

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01

Extension of time under rule 4

Holding

A delay of about 4 days is not inordinate; where the delay is explained, the appeal is arguable and no prejudice is shown, extension should be granted.

Reasoning

The single judge applied the settled Sila Mutiso guidelines: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent. The notice of appeal was filed in time; proceedings were collected on March 21, 2022 and the motion was dated April 4, 2022, a delay of about 4 days attributed to logistical and financial issues, which the court found plausible. The draft memorandum showed an arguable appeal, and the respondents neither opposed the motion nor demonstrated prejudice.

p. 2

Legal principles established

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  • The decision to extend time is discretionary and guided by the length of delay, reason for delay, arguability of the appeal and prejudice to the respondent.

Court orders

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  1. 1.The motion dated April 4, 2022 is allowed in terms of prayers 2 and 3
  2. 2.Leave granted to file the record of appeal against the ruling of Wasilwa J dated January 20, 2022 within 30 days 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

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

FS
majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court at Nakuru
ELRC Petition No E016 of 2021
Jurisdiction invoked
Rules 41 and 47 of the Court of Appeal Rules 2010 and article 159 of the Constitution of Kenya 2010; single judge under rule 4

Quotable passages

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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 my considered opinion, a delay of 4 days is certainly not inordinate.
p. 2length of delay
I am satisfied that the delay herein has been explained to the satisfaction of this court and I find the reasons given for the delay to be plausible.
reason for delay
I am satisfied that the applicants have an arguable appeal worthy of consideration by the court.
arguability of intended appeal
The applicants are hereby granted leave to file their record of appeal against the ruling of Wasilwa, J dated January 20, 2022, within 30 days of this ruling failure to which these orders shall stand vacated.
p. 3final orders
The costs of this motion shall abide the outcome of the intended appeal.
p. 3costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Union of Kenya Civil Servants & another v Kachuwai & 2 others", Case Analysis (2022). Civil Application E018 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1198/eng@2022-10-26

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