[2021] KECA 924 (KLR)
The court found that the delay of twelve days in filing the notice of appeal was not inordinate. The applicant provided a reasonable explanation for the delay, namely the movement restrictions imposed due to the Covid-19 pandemic, which hindered communication with her advocate. The court also noted the absence of...
Source-derived case information.
- Citation
- [2021] KECA 924 (KLR)
- Parties
- Applicant: Juliet Atieno Ouko; Respondent: Craft Silicon Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 176 of 2020
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application allowed
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Notice of Appeal, Court Discretion, Covid19 Related Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juliet Atieno Ouko
Applicant
Craft Silicon Limited
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the notice of appeal out of time.
- 2 Whether the delay in filing the notice of appeal was inordinate.
- 3 Whether the respondent would suffer prejudice if the extension is granted.
Ratio Decidendi
The court found that the delay of twelve days in filing the notice of appeal was not inordinate. The applicant provided a reasonable explanation for the delay, namely the movement restrictions imposed due to the Covid-19 pandemic, which hindered communication with her advocate. The court also noted the absence of any response or submissions from the respondent, indicating a lack of prejudice to the respondent if the extension was granted. Applying its discretion under Rule 4 of the Court of Appeal Rules and guided by the principles in Mwangi vs Kenya Airways Limited, the court allowed the application and granted the applicant leave to file and serve the notice of appeal within seven days.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file and serve her notice of appeal within seven days from the date hereof.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPLICATION NO. 176 OF 2020
(CORAM: OKWENGU, JA (IN CHAMBERS)
BETWEEN
JULIET ATIENO OUKO..........................................................................................APPLICANT
AND
CRAFT SILICON LIMITED................................................................................RESPONDENT
(Being an application to file notice of appeal out of time in an intendedappeal against the
Judgment and Decree of theEmployment and Labour Relations Court
at Nairobi (Radido, J.)delivered on 29th May, 2020
ELRC No. 1356 of 2016)
*****************
RULING
[1] By a notice of motion dated 26th June, 2020, Juliet Atieno Ouko the applicant, seeks to have time extended to enable her file the notice of appeal against the judgment of the Employment and Labour Relations Court (ELRC), delivered on 29th May, 2020 out of time.
[2] In an undated affidavit sworn in support of the motion, the applicant swears that she was locked out of Nairobi and was unable to give instructions to her advocate to file an appeal, and that she has an arguable appeal with high chances of success. The applicant has also filed written submissions in which she urges the Court that the delay in filing notice of appeal was not inordinate and that the Court should therefore exercise its discretion in her favour.
[3] I have considered this application. Under Rule 4 of the Court Rules, this Court has unfettered discretion to extend time. As was held by this Court in Mwangi vs Kenya Airways Limited [2003] 486 which was cited by the applicant, matters which the Court takes in account in deciding whether to grant an extension of time are: the length of the delay, the reason for the delay, possibly the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent if the application is granted.
[4] In this matter, the judgment subject of the intended appeal was delivered on 29th May, 2020 and the application before us was filed on 26th June, 2020. The notice of appeal ought to have been filed within fourteen (14) days. This means that there has been a delay of twelve (12) days. This, by any standards is not inordinate. The applicant has explained that the delay was due to the movement restrictions arising from the Covid-19 pandemic, which made it difficult for her to communicate with her advocate. She has not informed us where she was, but we do appreciate the difficulties that litigants have been exposed to due to the restrictions imposed as a result of the Covid-19 pandemic.
[5] Although the respondent’s advocate was served, there was no affidavit filed in response to the motion, nor were any submissions filed. It is evident that the respondent is not likely to suffer any prejudice. For these reasons, I allow the application and grant leave to the applicant to file and serve her notice of appeal within seven days from the date hereof. I make no orders as to costs.
Dated and delivered at Nairobi this 5thday of March, 2021.
HANNAH OKWENGU
....................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR