[2016] KECA 354 (KLR)
The court found that the applicant acted promptly after judgment by lodging a notice of appeal and requesting proceedings. The delay in obtaining the proceedings and judgment was caused by the trial court, as evidenced by the Deputy Registrar's certificate. The only period of unexplained delay was approximately two...
Source-derived case information.
- Citation
- [2016] KECA 354 (KLR)
- Parties
- Applicant: John Charo Ngumbao; Respondent: Amani Tiwi Beach Resort
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 27 of 2016
- Procedural Posture
- Civil Application / Application for Extension of Time to File Appeal
- Outcome
- Application allowed.
- Judges
- SP Ouko
- Legal Topics
- Extension of Time, Appeal Procedure, Delay in Filing, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Charo Ngumbao
Applicant
Amani Tiwi Beach Resort
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file the record of appeal.
- 2 Whether the delay in filing the appeal was inordinate or excusable.
- 3 Whether the respondent would suffer prejudice if the extension is granted.
Ratio Decidendi
The court found that the applicant acted promptly after judgment by lodging a notice of appeal and requesting proceedings. The delay in obtaining the proceedings and judgment was caused by the trial court, as evidenced by the Deputy Registrar's certificate. The only period of unexplained delay was approximately two months, which the court found not to be inordinate. The respondent did not oppose the application or demonstrate any prejudice that would result from the extension. Applying the principles from Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court exercised its discretion in favor of the applicant and allowed the application for extension of time to file and serve the record...
Court Disposition
Application allowed.
Orders
- The motion dated 31st May 2016 is allowed.
- The record of appeal shall be filed and served within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT MALINDI
(CORAM: OUKO, JA. IN CHAMBERS)
CIVIL APPLICATION NO.27 OF 2016
BETWEEN
JOHN CHARO NGUMBAO …………………….APPLICANT
AND
AMANI TIWI BEACH RESORT ………………..RESPONDENT
(Being an appeal against part or section of the judgment of the Employment and Labour Relations Court of Kenya at Mombasa (Rika, J.) dated 19th June, 2015in
Labour Relations Case No.221 of 2014)
*****************
RULING OF THE COURT
Judgment in the Employment and Labour Relations Court No. 221 of 2014 in which the applicant was the claimed, was determined against him on 19th June 2015, nearly one year today. Although he timeously lodged a notice of appeal, he has not filed the appeal. He therefore seeks by this application that due to delay attributable to the trial court, time for filing the appeal be enlarged; that the delay has been confirmed by a certificate issued by the trial court’s Deputy Registrar to the effect that time taken in the preparation of copies of the proceedings and judgment was between 9th July 2015 and 15th March 2016. There is a copy of a letter on record dated 9th July 2015, a few days after the judgment was rendered. With this uncontroverted position the period of concern is between 15th March 2016 when the copies of the proceedings and judgment were made ready and 31st May 2016 when the instant application was taken out, a period of nearly two months.
The jurisdiction of a single judge under Rule 4 of the Court of Appeal Rules pursuant to which this application has been brought has been defined over the years and the guidelines of what a single judge should consider are now settled. In the often-cited decision of Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application No. NAI. 255 of 1997 that jurisdiction was spelt over as follows;
“..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 delay; second, the reasons 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.”
It is apparent that three days after the judgment was delivered, the applicant lodged the notice of appeal. It is also confirmed that the delay upto 31st May 2016 was caused by the trial court.
The delay of two months before this application was instituted is not inordinate. The respondent though served with the hearing notice was not represented. It also did not respond to the application with the result that it can be concluded that it will suffer no prejudice should time be extended as prayed.
In the result, the motion dated 31st May 2016 is allowed, with no orders as to costs. The record of appeal will be filed and served within 14 days from the date of this ruling.
Dated and delivered at Malindi this 29th day of July, 2016
ASIKE-MAKHANDIA
………………
JUDGE OF APPEAL
W. OUKO
……………
JUDGE OF APPEAL
K. M’INOTI
……………
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR