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Court of AppealDismissedCivil Application E053 of 2022· [2022] KECA 1035 (KLR)

Kenya County Government Workers Union v Kisumu Water & Sewerage Company

Court of Appeal
23 September 2022
MNMumbi Ngugi
1,762 words in judgment
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The bottom line

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The Court of Appeal dismissed a union's bid to appeal late because it gave no credible reason for the delay and had never filed a notice of appeal.

What this practically means

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Executive summary

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The applicant union sought, by notice of motion dated 10th April 2022 under sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, 2010, an extension of time to lodge an appeal out of time against the ruling of the Employment and Labour Relations Court at Kisumu (Baari J.) of 10th February 2022, which dismissed its Miscellaneous Application No. E060 of 2021 as res judicata, together with a stay of execution of that ruling. The respondent opposed, noting it had complied with the underlying decree in ELRC No. 429 of 2017, that a contempt application on the same subject had been dismissed by Radido J on 26th May 2021, and that the applicant had not annexed a draft memorandum of appeal. Ngugi JA applied the Leo Sila Mutiso principles. The delay was two months. The explanation - bereavement of the Secretary General, said to be the only person authorised to instruct advocates - was rejected: the affidavit did not depose to the bereavement, and no evidence showed that only the Secretary General could give instructions or who the deceased was. On stay, the court held the dismissal was a negative order incapable of being stayed, and that in any event stay under Rule 5(2)(b) requires a duly filed notice of appeal, without which the Court lacks jurisdiction over the intended appeal. The application was dismissed with costs to the respondent.

Key legal issues

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01

Plausibility of the reason for delay

Holding

The bereavement explanation failed because the Secretary General did not depose to the bereavement in his affidavit, and no details of the deceased or the closeness of the relationship were given.

Reasoning

The grounds on the face of the application alleged bereavement, but the supporting affidavit of Roba S. Duba only deposed that he was absent when the ruling was delivered. The court found nothing demonstrating that only the Secretary General could issue instructions, and no particulars of the bereavement, so no plausible explanation for the two-month delay was established.

p. 3
02

Stay of execution pending intended appeal

Holding

Stay under Rule 5(2)(b) presupposes a duly filed notice of appeal; a negative order (dismissal) is also not amenable to stay.

Reasoning

The order sought to be stayed was a dismissal for res judicata, a negative order. Even if positive, a stay sought alongside extension of time is premature because no notice of appeal had been lodged. Without a valid notice of appeal, the Court lacks jurisdiction to entertain proceedings regarding the intended appeal.

p. 4

Legal principles established

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  • Rule 5(2)(b) jurisdiction for stay can only be invoked where a duly filed notice of appeal exists; without a valid notice of appeal the Court lacks jurisdiction over the intended appeal.
  • An application for stay of execution filed contemporaneously with an application for extension of time is premature and unsustainable.
  • Extension of time under Rule 4 requires consideration of the length of the delay, the reasons for the delay and possibly the chances of success of the appeal.

Court orders

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  1. 1.The application dated 10th April 2022 is dismissed with costs to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Labour Relations Act No. 14 of 2007Sections 48(2) and (3)

Cases cited (2)

  • Leo Sila Mutiso vs Hellen Wangari Mwangi
    (1999) 2 EA 231

    Principles for exercise of discretion to extend time: length of delay, reasons, chances of success

  • Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet
    (2018) eKLR

    No minimum or maximum period of delay; applicant must give a plausible reason for delay

On appeal from
Employment and Labour Relations Court at Kisumu
Miscellaneous Application No. E060 of 2021
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9 and Rule 4 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya County Government Workers Union v Kisumu Water & Sewerage Company", Case Analysis (2022). Civil Application E053 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1035/eng@2022-09-23

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