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Court of AppealAllowedCivil Application (Notice of Motion dated 9th April 2024) arising from ELRC No. E088 of 2023

Michira & 41 others v Aegis Kenya Limited t/a Leopard Beach Hotel (Civil Application E034 of 2024) [2024] KECA 1285 (KLR)

Court of Appeal of Kenya
27 September 2024
2,833 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed 42 former employees to file their appeal late because they actively followed up with their lawyers, whose negligence shouldn't punish them.

What this practically means

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Executive summary

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This was a single-judge application before the Court of Appeal at Mombasa under rules 4 and 44 of the Court of Appeal Rules, 2022, in which Elijah Isaboke Michira and 41 others sought extension of time to file and serve a memorandum and record of appeal against a judgment of the Employment and Labour Relations Court at Mombasa delivered on 19th October 2023 in ELRC No. E088 of 2023. The applicants, former employees claiming gratuity and terminal benefits for over twenty-six years of service, blamed their previous advocates for missing the deadline of 21st February 2024 and filed the present application on 9th April 2024. The respondent opposed, contending the delay was unexplained, the application was defective and an abuse of process. Applying the settled Rule 4 criteria (length of delay, reason for delay, chances of success, prejudice), the court found the 42-day delay inordinate but satisfactorily explained: the litigants had instructed counsel, followed up on 18th March 2024, and changed advocates, showing they neither condoned nor colluded in the delay. The court held that the negligence of previous advocates should not be visited on clients. A cursory perusal of the draft memorandum showed bona fide, arguable grounds, and the respondent failed to demonstrate prejudice. The application was allowed; time was extended, with filing within 21 days and service within 14 days; costs were ordered to abide the 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 have satisfied the Rule 4 principles (length of delay, reason for delay, chances of success, prejudice) to warrant extension of time to file and serve the memorandum and record of appeal
  2. 2.Whether the applicants showed due diligence and personal interest in the matter rather than merely blaming their previous advocates
  3. 3.Whether the intended appeal is arguable

Key legal issues

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01

Extension of time principles under Rule 4

Holding

The four Rule 4 factors are length of delay, reason for delay, chances of success and prejudice; the discretion is judicial, not fettered.

Reasoning

The court restated the settled criteria from Leo Sila Mutiso and Muringa Company, and quoted Waki, JA in Njuguna v Magichu that the discretion under Rule 4 is unfettered but must be exercised on sound factual and legal basis, i.e. to do justice between the parties.

p. 3
02

Blaming previous advocates

Holding

A litigant who follows up and changes advocates demonstrates diligence; such delay is excusable despite being inordinate.

Reasoning

Although the 42-day delay was found inordinate, the applicants instructed their advocate on 14th February 2024, followed up on 18th March 2024, and changed advocates on 22nd March 2024. This showed they did not condone or conspire in the delay, and the negligence of the previous advocate should not be visited upon them.

p. 4
03

Arguability of intended appeal

Holding

The draft memorandum raised bona fide, arguable issues; a single judge cannot finally determine merit.

Reasoning

The court undertook a cursory perusal of the memorandum of appeal, identified grounds on limitation and premature determination of the cause of action, and held the appeal arguable, applying Athuman Nusura Juma on the 'possibly arguable' standard.

p. 5
04

Prejudice balance

Holding

The applicants would suffer greater prejudice (loss of gratuity and terminal benefits for 26 years' service) than the respondent, which showed none.

Reasoning

The respondent neither demonstrated nor argued the prejudice it would suffer if extension were granted, whereas the applicants stood to lose their lifetime benefits summarily. The balance therefore favoured allowing the application.

p. 5

Legal principles established

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  • A single judge may not finally determine whether an intended appeal has merit; extension of time requires only that the appeal be possibly arguable
  • Mistakes of an advocate should not be visited on the litigant, but the litigant must show diligence and interest in prosecuting the case

Court orders

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  1. 1.The Notice of Motion application dated 9th April 2024 be and is hereby allowed
  2. 2.The time for the filing of the memorandum of appeal and the record of appeal be and is hereby extended
  3. 3.The applicant do file the memorandum of appeal and the record of appeal within 21 days of the date of this ruling and serve both upon the respondent within 14 days from the date of filing thereof
  4. 4.The costs of the application shall abide the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court at Mombasa
ELRC No. E088 of 2023
Jurisdiction invoked
Rules 4 and 44 of the Court of Appeal Rules, 2022

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.

The discretion exercisable under Rule 4 of this Court’s Rules is unfettered. The main concern of the Court is to do justice between the parties. Nevertheless, discretion has to be exercised judicially, that is on sound factual and legal basis.
p. 3Rule 4 discretion
It is not enough for a party to simply blame the advocates on record for all manner of transgression. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel
p. 4Litigant diligence
The negligence or failure of the previous advocates should not be visited upon their clients.
p. 4Advocate's mistake
i. The Notice of Motion application dated 9th April 2024 be and is hereby allowed; ii. The time for the filing of the memorandum of appeal and the record of appeal be and is hereby extended;
p. 5Final orders
iv. The costs of the application shall abide the appeal.
p. 5Costs

Issues in the judgment

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minor

Internal date inconsistency - deadline computed as 21st February 2023 though proceedings were issued 29th November 2023 and judgment context is 2024

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, "Michira & 41 others v Aegis Kenya Limited t/a Leopard Beach Hotel (Civil Application E034 of 2024) [2024] KECA 1285 (KLR)", Case Analysis (2024). Civil Application (Notice of Motion dated 9th April 2024) arising from ELRC No. E088 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1285/eng@2024-09-27

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