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Court of AppealDismissedCivil Application (motion dated 29th May, 2020)· [2021] KECA 531 (KLR)

Almasi Beverage Limited v Kenya Union of Commercial Food and Allied Workers (Civil Application 44 of 2020) [2021] KECA 531 (KLR)

Court of Appeal
4 June 2021
1,661 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused Almasi Beverages more time to appeal, saying blaming its lawyer for a nearly three-year delay was not good enough.

What this practically means

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Executive summary

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Kisii Bottlers Limited (KBL) lost an ELRC claim brought by the Kenya Union of Commercial Food & Allied Workers, in which Njagi Marete, J ordered reinstatement of the employees, two months' salary each as compensation for unlawful termination, and costs. KBL filed a notice of appeal in 2017 but no record of appeal. Almasi Beverages Limited took over KBL's operations, was substituted as the respondent in the ELRC suit on 11th December 2019 following KBL's winding up, and then moved the Court of Appeal under Rule 4 for extension of time to file a notice of appeal and record of appeal out of time. It attributed the delay to counsel's erroneous belief that KBL had ceased to exist, and argued that its appeal was arguable and that the employees would suffer no prejudice as they had likely found alternative work. The respondent opposed, pointing to a delay of 2 years and 9 months beyond the statutory 60 days, the applicant's complacency while enjoying a stay of execution, and the prejudice to members denied reinstatement and compensation. Applying Leo Sila Mutiso and the Salat principles, the Court (Okwengu, JA) found the delay inordinate and the explanation illogical and totally inadequate, since the litigant shared blame with its advocate. The applicant was held not deserving of the Court's discretion, and the motion dated 29th May 2020 was dismissed with costs. The ELRC judgment therefore stands untouched by appellate review.

Key legal issues

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01

Whether the delay of 2 years and 9 months in filing the record of appeal was inordinate and adequately explained

Holding

The delay was inordinate and the explanation that counsel believed KBL had ceased to exist was illogical and inadequate, since the applicant was taking over KBL's assets and liabilities and had been substituted in its place.

Reasoning

The record of appeal was due on or before 5th August 2017, being 60 days from the notice of appeal filed 6th June 2017. The application was filed on 29th May 2020, a delay of 2 years and 9 months. The explanation that counsel mistakenly believed KBL had ceased to exist was illogical because both the applicant and its advocate knew it was taking over KBL's assets and liabilities, and the applicant had been substituted in place of KBL on 11th December 2019, making clear it had stepped into KBL's shoes. The litigant shares blame with its advocate.

p. 2
02

Whether the respondent would suffer prejudice if extension of time were granted

Holding

The delay was prejudicial to the respondent because its members have been kept from enjoying the benefits of the ELRC judgment, including reinstatement, for about four years while the applicant enjoys a stay of execution.

Reasoning

The applicant obtained and retained an order of stay of execution of the ELRC judgment, preventing the union's members from realizing reinstatement, compensation and outstanding salaries. Against that backdrop, the respondent demonstrated concrete prejudice from the delay. Blaming former counsel alone is insufficient; the applicant was as much to blame. On the Salat and Leo Sila Mutiso principles, the applicant failed to lay a basis for the equitable remedy of extension of time.

p. 3

Legal principles established

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  • In an application for extension of time under Rule 4, the Court's unfettered discretion must nonetheless be exercised judicially, taking into account the length of and reason for the delay and the prejudice to the respondent.
  • A litigant cannot escape blame for delay merely by blaming former counsel; the litigant must show the action it took and that it did not condone or collude in the delay.
  • A litigant enjoying a stay of execution while delaying prosecution of the appeal cannot claim the delay is not prejudicial to the judgment creditor.

Court orders

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  1. 1.The notice of motion dated 29th May, 2020 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (4)

  • Leo Sila Mutiso vs Hellen Wangari Mwangi
    [1999] 2EA 231
  • Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others
    [2014] eKLR
  • Daqare Transporters Limited v Chevron Kenya Limited
    [2020] eKLR
  • RAJESH RUGHANI V FIFTY INVESTMENTS LIMITED & ANOTHER
    [2016] eKLR
On appeal from
Employment and Labour Relations Court
Case No 87 of 2016
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent/appellate discretion to extend time)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Almasi Beverage Limited v Kenya Union of Commercial Food and Allied Workers (Civil Application 44 of 2020) [2021] KECA 531 (KLR)", Case Analysis (2021). Civil Application (motion dated 29th May, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/531/eng@2021-06-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.