LABOUR LAW-dismissal-where the plaintiffs were declared redundant on account of financial constraints and over employment by the corporation-where the principle of last come first gone was not accepted and managers were given a week to provide a list of those to be declared redundant or else the would also go home-validity of the redundancy dismissals

Pan African Paper Mills (EA) Limited v Truphena V Olaka

Court of Appeal, at Nakuru February 23, 2001

O’Kubasu JA

Civil Application No NAI 312 of 2000

(Application to file and serve a Record of Appeal out of time in an intended

appeal from a Judgment of the High Court of Kenya at Eldoret

(Lady Justice Roselyne Nambuye) dated 9th day of October, 1996

in HCCC No 140 of 1988)

Civil Practice and Procedure - appeal - extension of time to file appeal - factors to be considered in an application for extension of time – discretion of the court in extending time - scope of the discretion and how it should be exercised - Court of Appeal Rules rule 4.

The applicant approached the Court of Appeal by motion brought under rule 4 of the Court of Appeal Rules seeking an order that they be granted leave to file and serve a Notice and Record of Appeal out of time. The applicant argued that the delay in filing the appeal was due to the fact that it had taken a long time to obtain copies of typed proceedings and that when the appeal was filed, it was struck out.

In opposing the application, the respondent pointed out that the judgment to be appealed from was delivered on 9th October, 1996 and the appeal was filed on 15th November, 1999, after a delay of over three years. It was stated further that there was a letter dated 28th October, 2000 in which it was stated that the case had been concluded and yet in an affidavit sworn on 31st October 2000 the advocate for the applicant had sought leave to appeal. The decretal amount had also been paid out to the respondent.

Held:

1. In an application for leave to file and serve a Notice and Record of Appeal out of time, the Court is being asked to exercise its unfettered discretion which is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it’s not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.

2. The decision whether or not to extend the time for appealing is essentially discretionary. In general, the matters which the Court takes into account in deciding whether to grant an extension of time are:

a) the length of the delay;

b) the reason for the delay;

c) the chances of the appeal succeeding if the application is granted; and

d) The degree of prejudice to the respondent if the application is granted.

3. The discretion under rule 4 of the Court of Appeal rules should be exercised judicially and not arbitrarily or capriciously: nor should it be exercised on the basis of sentiment or sympathy.

Application dismissed.

Cases

1. Shah v Mbogo [1967] EA 116

2. Mutiso, Leo Sila v Rose Hellen Mwangi Civil Application No NAI 255 of 1997

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rule 4

Advocates

Mr Nyagaka for the Applicant

Mr Onyinkwa for the Respondent