Almasi Beverage Limited v Kenya Union of Commercial Food and Allied Workers (Civil Application 44 of 2020) [2021] KECA 531 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the delay of 2 years and 9 months in filing the record of appeal was inordinate and adequately explained
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.
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.
Whether the respondent would suffer prejudice if extension of time were granted
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.
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 29th May, 2020 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.