[2022] KECA 1049 (KLR)
The court found that the applicant had satisfactorily explained the delay in filing the notice of appeal, attributing it to his advocate's failure to notify him of the judgment and the difficulties in obtaining new legal representation during the Covid-19 pandemic. The court also determined that the intended appeal...
Source-derived case information.
- Citation
- [2022] KECA 1049 (KLR)
- Parties
- Applicant: Jackson Kiprotich Kirui Tanui; Respondent: Phillips Pharmaceuticals Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 197 of 2020
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- application allowed
- Judges
- DK Musinga
- Legal Topics
- Extension of Time, Notice of Appeal, Delay Explanation, Covid 19 Impacts, Arguable Appeal, Prejudice to Respondent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Kiprotich Kirui Tanui
Applicant
Phillips Pharmaceuticals Limited
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided a satisfactory explanation for the delay in filing the notice of appeal.
- 2 Whether the intended appeal is arguable and not frivolous.
- 3 Whether the respondent will suffer prejudice if the extension is granted.
Ratio Decidendi
The court found that the applicant had satisfactorily explained the delay in filing the notice of appeal, attributing it to his advocate's failure to notify him of the judgment and the difficulties in obtaining new legal representation during the Covid-19 pandemic. The court also determined that the intended appeal was not frivolous and that any prejudice to the respondent could be compensated by costs. Therefore, the court exercised its discretion to grant the extension of time sought by the applicant.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file and serve a notice of appeal within fourteen (14) days from the date of delivery of this ruling.
- The costs of this application shall abide the outcome of the intended appeal.
Full Case Text
Judgment text and source record
25 paragraphs
Tanui v Phillips Pharmaceuticals Limited (Civil Application 197 of 2020) [2022] KECA 1049 (KLR) (23 September 2022) (Ruling)
Neutral citation: [2022] KECA 1049 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Application 197 of 2020
DK Musinga, JA
September 23, 2022
Between
Jackson Kiprotich Kirui Tanui
Applicant
and
Phillips Pharmaceuticals Limited
Respondent
(Being an application for extension of time to file a Notice of Appeal, request for typed proceedings and decree against the Judgment of the Employment and Labour Relations Court of Kenya at Mombasa (N. Ndolo, J.) dated 9th April 2020inE.L.R.C Cause No. 495 of 2018. Cause 495 of 2018 )
Ruling
1. The applicant’s application is for extension of time to file a notice of appeal. The judgment that he seeks to appeal from was delivered on April 9, 2020 but his advocate did not notify him of its delivery until April 25, 2020. This was at a period when Covid-19 was at its peak in the country and there was restriction of movements.
2. The applicant instructed the advocate who had acted for him before the Employment and Labour Relations Court to file an application for leave to appeal but the advocate was unwilling. It was not easy for the applicant to get another advocate due to the Covid-19 situation in the country, hence the delay in filing the application on June 12, 2020.
3. The applicant believes that his intended appeal has good chances of success and urges this Court to exercise its discretion in his favour, contending that he is not personally to blame for the delay.
4. The respondent opposed the application through a replying affidavit sworn by its advocate, who stated, inter alia, that the delay in filing the application was not well explained; that the applicant’s intended appeal has no chances of success; and that the respondent will be prejudiced if the application is allowed.
5. I have considered this application in light of the settled principles that guide this Court in an application for extension of time as set out in a plethora of the Court’s decisions, among them beingLeo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231.
6. I am satisfied that the delay has been well explained. The applicant’s advocate failed to notify him about the judgment until April 25, 2020 when he sent him a WhatsApp message. It was not easy for the applicant to move around to look for an advocate after the one who was on record for him declined instructions to act any further.
7. The applicant’s supplementary affidavit sets out what he believes to be arguable grounds of appeal, and I think the intended appeal is not frivolous.
8. The respondent shall not suffer such prejudice as may not be compensated by an award of costs should the intended appeal fail.
9. Consequently, I grant leave to the applicant to file and serve a notice of appeal within fourteen (14) days from the date of delivery of this ruling. The costs of this application shall abide the outcome of the intended appeal.
DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF SEPTEMBER, 2022. D. K. MUSINGA, (P)JUDGE OF APPEAL................................................I certify that this is a true copy of the originalSignedDEPUTY REGISTRAR