Kenya Chemical & Allied Workers v Ernest & Young Liquidators for Cotes Brothers E.A Ltd [2018] KECA 37 (KLR)
The bottom line
#Kenya's Court of Appeal refused a union's plea for extra time to appeal because it blamed its lawyers and hid key facts, killing the appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted an extension of time to file and serve its record of appeal
- 2.Whether the notice of appeal filed on 27th March 2015 should be deemed properly filed
- 3.Whether the applicant offered a plausible explanation for the delay in filing the memorandum and record of appeal
Key legal issues
#Whether the delay in filing the record of appeal was sufficiently explained
The delay was not explained; the applicant withheld material facts and was economical with the truth, so the discretion was not exercised in its favour
The court found unexplained gaps between 9th February 2016 and 28th October 2016, and between the corrected certificate of delay of 11th November 2016 and the filing of the application on 29th March 2017. The applicant also failed to disclose in its application the true chronology, including the earlier certificate of delay issued on 9th February 2016 (with an erroneous year) and its current advocates' involvement since October 2016, only addressing these in a supplementary affidavit after the respondent exposed them.
Whether blame can be placed wholly on previous advocates
No; a litigant bears responsibility to follow up its case even when represented
Relying on Habo Agencies Limited v Wilfred Odhiambo Musingo, the court held that parties cannot simply blame their advocates for transgressions in the conduct of litigation. The union, through its members and officials, was expected to show interest in the appeal. Even if the advocates were at fault, the applicant's own candour failures independently disentitled it to the extension.
Legal principles established
#- Extension of time under Rule 4 is discretionary and is governed by the length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent; the list is not closed
- An applicant for extension of time must give a plausible explanation for the delay; blaming advocates alone is insufficient, as parties must follow up their cases
- An applicant must be candid; withholding relevant information from the application disentitles it to the discretionary relief
Court orders
#- 1.The application dated 28th March 2017 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court
- not stated in judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2010
Relief refused
#Extension of time to file and serve the record of appeal
Unexplained delays and the applicant withheld relevant information; insufficient basis to exercise discretion in its favour
Deeming of the notice of appeal filed on 27th March 2015 as properly filed
Fell with the dismissal of the application
Costs
Costs of the application to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
first, the length of the delay; secondly, the reason 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.
The categories of factors for consideration is however not closed and the court may consider other factors as may be relevant in the circumstances of each particular case.
It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation.
I accordingly dismiss the application with costs to the respondent.
Issues in the judgment
#The judgment states the original certificate of delay was issued on 9th February 2016 but with the year incorrectly indicated as 2015; the text elsewhere refers to it as issued in 'February, 2015', creating an internal chronological ambiguity
The respondent's replying affidavit is described as sworn on 8th May 2018 in an application filed on 29th March 2017 and heard thereafter - the chronology in the judgment is not internally reconciled
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Chemical & Allied Workers v Ernest & Young Liquidators for Cotes Brothers E.A Ltd [2018] KECA 37 (KLR)", Case Analysis (2018). Civil Application (Nai.) not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/37/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.