[2019] KEELRC 1249 (KLR)
The court held that the application for leave to appeal out of time was incompetent and unfit for grant. The applicants failed to provide a draft memorandum of appeal or sufficient reasons for the delay, making it impossible for the court to assess the prospects of success of the intended appeal. The court...
Source-derived case information.
- Citation
- [2019] KEELRC 1249 (KLR)
- Parties
- Respondent: Elizabeth Muthoni Muriithi; Applicant: Joseph Muchina Muriuki; Applicant: Mary Wairimu Muchina
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 436 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- AN Makau
- Legal Topics
- Extension of Time, Leave to Appeal, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Muthoni Muriithi
Respondent
Joseph Muchina Muriuki
Applicant
Mary Wairimu Muchina
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the court should grant leave to file an appeal out of time.
- 2 Whether the applicants have provided sufficient reasons for the delay in filing the appeal.
- 3 Whether the intended appeal has any chances of success.
Ratio Decidendi
The court held that the application for leave to appeal out of time was incompetent and unfit for grant. The applicants failed to provide a draft memorandum of appeal or sufficient reasons for the delay, making it impossible for the court to assess the prospects of success of the intended appeal. The court emphasized that the extension of time is a discretionary remedy, and the applicants did not meet the established criteria, including explaining the delay and demonstrating the likelihood of success. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for leave to appeal out of time is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CASE NO. 436 OF 2017
ELIZABETH MUTHONI MURIITHI..........CLAIMANT/RESPONDENT
VERSUS
1. JOSEPH MUCHINA MURIUKI
2. MARY WAIRIMU MUCHINA...........RESPONDENTS/APPLICANTS
RULING
1. The Respondents/Applicants’ notice of motion application seeks leave to file an appeal out of time. The decision that the intended appeal is sought was given on 8th April 2019. The grounds are that no leave was sought when the judgment was delivered and that the Respondents wish to appeal against the decision. The Respondents/Applicants’ motion is supported by the affidavit of Mary Wairimu Muchina one of the co-applicants which is simply to the effect that the Respondents are dissatisfied with the decision of the court.
2. The application to appeal out of time was sketchy at best as the Applicants only attached an intended notice of appeal. In the case of Thuita Mwangiv Kenya Airways Ltd [2003] eKLR the Court of Appeal held citing the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No. Nai 255 of 1997) (unreported), the Court expressed itself thus:
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted”.
3. As seen above, it is now well settled in law that the decision whether or not to extend the time for preferring an appeal is discretionary. It is also well settled that in general, the matters which a court has to take into account in deciding whether or not to grant an extension of time are: firstly, the length of the delay; secondly, the reason for the delay; thirdly, the chances of the intended appeal succeeding if the application is granted and, fourthly, but not least, the degree of prejudice to the respondent if the application is granted. In the matter before me there is no draft memorandum of appeal presented and there is no basis to determine if there is any chance for the appeal intended to be filed ever succeeding. In the premises there is no basis to grant the application before me as it is hopelessly incompetent and unfit for grant. Application is dismissed with costs.
It is so ordered.
Dated and delivered at Nyeri this 3rd day of July 2019
Nzioki wa Makau
JUDGE
I certify that this is a
true copy of the Original
Deputy Registrar