Motorways Kenya Limited v Kenya Engineering Workers Union [2018] KECA 327 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an employer's bid for extra time to appeal, ruling that every day of delay must be properly explained with sworn evidence.
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 has given a plausible explanation for the delay in filing the notice of appeal
- 2.Whether, applying the Salat principles, extension of time should be granted and the notice of appeal filed on 6th March 2018 deemed properly filed
Key legal issues
#Whether the delay in filing the notice of appeal was adequately explained
The delay was unexplained; the applicant's Managing Director gave hearsay evidence, blamed an unnamed court clerk who swore no affidavit, and the applicant was economical with the truth.
The explanation rested on what the advocates told the Managing Director, not on affidavits from the advocate or the clerk allegedly responsible. The court found the explanation lacked candour and that further delay in filing the motion after discovering the omission showed inactivity rather than inadvertent error. Without proper evidentiary foundation, there was no basis to exercise discretion in the applicant's favour.
Whether public interest or prospects of success favoured extension
No; the dispute was private, the employees were unemployed and prejudiced by continuing delay, and arguability of the appeal could rarely outweigh other considerations.
The court held the matter a private employer-employee dispute raising no public interest. The three employees granted monetary reliefs were no longer in gainful employment and the delay prejudiced them. The complaint about arithmetic errors in the award was, at best, a borderline matter for the full court and could not outweigh the unexplained delay.
Legal principles established
#- Extension of time is an equitable, discretionary remedy governed by the Salat principles; any delay, even of one day, must be explained to the satisfaction of the court, otherwise it is inordinate.
- A notice of appeal is the foundational document conferring jurisdiction on the Court and a careful advocate lodges it as a matter of course.
- Inaction by counsel is not an excusable mistake, and the principal bears the consequences of an agent's failure to act.
- Explanation of delay must be given on proper evidence; hearsay belief by a Managing Director without affidavits from the advocate or clerk deprives the court of the basis to exercise its discretion.
Court orders
#- 1.The motion dated 11th April 2018 seeking extension of time to file and serve a notice of appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment & Labour Relations Court
- Jurisdiction invoked
- Inherent/appellate jurisdiction to extend time for filing a notice of appeal under Rule 75 of the Court of Appeal Rules
Relief refused
#Extension of time to file and serve the notice of appeal
No sufficient explanation for the delay; explanation was hearsay, blamed an unnamed clerk who gave no affidavit, and lacked candour
Deeming the notice of appeal filed on 6th March 2018 as properly filed
Consequential on refusal of extension of time; delay unexplained and prejudicial to the respondent's members
Costs
Dismissed with costs (costs awarded 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.
All in all, there is no merit in the motion before me and I order that it be and is hereby dismissed with costs.
Any delay, however, even for one day, ought to be explained otherwise it is rendered inordinate. And there lies the 'achilles heel' of this application.
Lack of candour irritates a court of equity.
It is not enough simply to accuse the Advocate of failure to inform as if there is no duty on the client to pursue his matter.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
Issues in the judgment
#The case number and full party names are not stated in the judgment; only the motion date and the parties' descriptions appear.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Maringa (The Administrator of the Estate of Maringa Kibisho) v Maina & 4 others (Civil Application E022 of 2026) [2026] KECA 1337 (KLR)[2026] KECA 1337 (KLR)3 Jul 2026
- Eliazar & another v Sambu (Environment and Land Appeal E049 of 2024) [2026] KEELC 2554 (KLR)[2026] KEELC 2554 (KLR)30 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "Motorways Kenya Limited v Kenya Engineering Workers Union [2018] KECA 327 (KLR)", Case Analysis (2018). Motion on notice dated 11th April 2018 (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/327/eng@2018-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.