[2020] KECA 763 (KLR)
The court found that the applicant had provided a satisfactory explanation for the delay in filing the notice of appeal, attributing it to the clerk's misplacement of the notice and the subsequent disruption of court operations due to the COVID-19 pandemic. The absence of opposition from the respondent and the...
Source-derived case information.
- Citation
- [2020] KECA 763 (KLR)
- Parties
- Applicant: National Hospital Insurance Fund Board of Management; Respondent: Kenya Union of Commercial Food and Allied Workers
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 95 of 2020
- Procedural Posture
- Extension of Time Application / Single Judge Chamber Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- Application allowed. Extension of time granted. Notice of appeal deemed duly filed.
- Legal Topics
- Extension of Time, Notice of Appeal, Judicial Discretion, Delay Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Hospital Insurance Fund Board of Management
Applicant
Kenya Union of Commercial Food and Allied Workers
Respondent
Procedural Posture
Extension of Time Application / Single Judge Chamber Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has established sufficient cause for extension of time to file a notice of appeal out of time.
- 2 Whether the delay in filing the notice of appeal was adequately explained to the satisfaction of the court.
- 3 Whether the respondent would suffer prejudice if the extension is granted.
Ratio Decidendi
The court found that the applicant had provided a satisfactory explanation for the delay in filing the notice of appeal, attributing it to the clerk's misplacement of the notice and the subsequent disruption of court operations due to the COVID-19 pandemic. The absence of opposition from the respondent and the promptness with which the applicant acted after the judgment further supported the exercise of judicial discretion in the applicant's favour. The court concluded that the circumstances justified granting the extension of time, and the notice of appeal was deemed duly filed.
Court Disposition
Application allowed. Extension of time granted. Notice of appeal deemed duly filed.
Orders
- The application dated 2nd April 2020 is allowed in terms of prayer 3.
- The notice of appeal dated 10th March 2020 is deemed as duly filed.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GATEMBU, J.A (IN CHAMBERS))
CIVIL APPLICATION NO. 95 OF 2020
BETWEEN
NATIONAL HOSPITAL INSURANCE FUND
BOARD OF MANAGEMENT.....................APPLICANT
AND
KENYA UNION OF COMMERCIAL FOOD
AND ALLIED WORKERS......................RESPONDENT
(Being an application for extension of time for giving Notice of Appeal and for leave to appeal out of time from the Judgment of the Employment and Labour Relations Court at Nairobi (M. Onyango, J.) delivered on 6thMarch 2020
in
ELRC Cause No. 1389 of 2018)
****************
RULING
1. By notice of motion dated 2nd April 2020, National Hospital Insurance Fund Board Management, the applicant seeks an order for extension of time and that the notice of appeal dated10thMarch 2020 lodged in the Employment and Labour Relations Court be deemed as duly filed.
2. The notice of motion was transmitted to me by email by the Registrar of the Court alongside the supporting affidavit swornby Aldrin Ojiambo for consideration on 15thApril 2020 as scheduled in the cause list.
3. I understand from the Registrar of the Court that the application was served and directions given that it would be considered on the basis of documents transmitted on email in light of the existing scaled down operations of the Court owing to the Corona Virus epidemic. I have not however seen any replying affidavit or opposition to the application.
4. I have considered the material placed before me. The principles applicable in an application for extension of time were stated inNicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, Supreme Court Application No. 16 of 2014[2014] eKLRwhere the Supreme Court of Kenya pronounced that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; that delay should be explained to the satisfaction of the court; whether there will be prejudice suffered by the respondents if the extension is granted; whether the application is brought without undue delay; and whether public interest should be a consideration.
5. In the present case, the applicant has explained that being aggrieved by the judgment delivered by the Employment andLabour Relations Court on 6th March 2020, it promptly prepared a notice of appeal and a letter bespeaking typed proceedings but the clerk who was tasked with filing, having paid for the proceedings, misplaced the notice of appeal andwas not able to pay for it on 13thMarch 2020; that following the announcement by the Judiciary on 15thMarch 2020 of the scaled down operations of the judiciary on account of the corona virus epidemic, it was only able to file the notice of appeal on 31stMarch 2020.
6. Having considered the application, I am satisfied that this is a proper case for me to exercise my discretion in favour of the applicant. I accordingly allow the application in terms of prayer3 of the application dated 2ndApril 2020. The notice of appeal dated 10thMarch 2020 is deemed as duly filed. The costs of the application shall costs in the appeal.
Dated and delivered at Nairobi this 24thday of April, 2020.
S. GATEMBU KAIRU, FCIArb
…………..…………….
JUDGE OF APPEAL
I certify that this is a true copy of the original
Signed
DEPUTY REGISTRAR