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Court of AppealDismissedCivil Application 32 of 2020· [2022] KECA 1068 (KLR)

Kenya Marine and Fisheries Limited (KMFRI) v Union of National Research Institute Staff of Kenya

Court of Appeal
7 October 2022
JLJ.W. Lessit
1,851 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a state corporation extra time to appeal because it sat on its case without following up, confirming delay explanations need real evidence.

What this practically means

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Executive summary

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This is a ruling by a single judge of the Court of Appeal at Mombasa (Lessit, JA) on a Notice of Motion dated May 27, 2020 by Kenya Marine and Fisheries Limited (KMFRI), a state corporation, seeking leave to file a notice and record of appeal out of time against the judgment of the Employment and Labour Relations Court at Mombasa (Rika, J) delivered on December 13, 2019 in ELRC Cause No. 186 of 2016, in which a CBA-related award was entered against it. The applicant also sought extension of a lapsed stay of execution, which the single judge held could only be considered by a full bench. Applying the Supreme Court's criteria in Nicholas Kiptoo Arap Korir Salat v IEBC, the judge identified the length of and reason for the delay, arguability of the intended appeal, and prejudice. The delay was 116 days, explained as time taken consulting the parent Ministry and the Treasury on whether to pay the decretal amount or appeal, given the applicant's status as a state corporation, plus pending applications in the ELRC. The court found the explanation unsatisfactory: the only evidence was an unresponded-to letter of 30/12/2019 seeking funds, and there was no evidence of follow-up or reminders, demonstrating lack of diligence. Without reaching arguability or prejudice, the judge held the application undeserving of the discretion and dismissed it. The ruling establishes that state corporations cannot rely on internal consultation processes to excuse inordinate delay absent diligent follow-up. The decision below was not disturbed; this was an interlocutory application, not the appeal itself.

Key legal issues

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01

Whether the 116-day delay in filing the application was excusable

Holding

The delay was unreasonable, inordinate and attributable to lack of diligence; the applicant waited over a year for a response from the parent Ministry without any follow-up or reminders.

Reasoning

The applicant attributed the delay to consultations with the parent Ministry and the Treasury on whether to pay the decretal sum or appeal, being a state corporation. However, the only evidence was a letter dated 30/12/2019 which was never answered, and the applicant took no follow-up steps between that date and the filing of the application, demonstrating lack of diligence.

p. 4
02

Whether the Salaries and Remuneration Commission's involvement justified the delay or rendered the award unenforceable

Holding

Not determined; the court found it unnecessary to reach arguability and prejudice, dismissing the application on the delay and diligence grounds alone.

Reasoning

The applicant argued the award touched civil servants' remuneration requiring SRC consultation, but the respondent contended the CPMU Report was binding with or without SRC input and the ELRC had allowed 90 days for SRC advice which the applicant failed to obtain. The court did not resolve these contentions, resting its decision on the unexplained delay.

p. 4

Legal principles established

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  • Extension of time is an equitable discretionary remedy, not a right, and the applicant bears the burden of explaining the delay to the satisfaction of the court.
  • A single judge of the Court of Appeal can only determine extension of time under Rule 4; extension of a lapsed stay of execution is for the full bench.

Court orders

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  1. 1.Leave to file the notice and record of appeal out of time declined
  2. 2.The application dated 27/5/2020 dismissed

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3, 3A and 3B
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRules 5, 42 and 47
  • Constitution of KenyaArticle 159

Cases cited (1)

  • Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR

    Crystallized parameters for exercise of discretion to extend time under Rule 4

On appeal from
Employment and Labour Relations Court at Mombasa
ELRC Cause No. 186 of 2016
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act; Rule 4 of the Court of Appeal Rules; Article 159 of the Constitution of Kenya, 2010

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, "Kenya Marine and Fisheries Limited (KMFRI) v Union of National Research Institute Staff of Kenya", Case Analysis (2022). Civil Application 32 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1068/eng@2022-10-07

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