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Court of AppealDismissedCivil Application 031 of 2022

Mwinzangu & 61 others v Kenya Ports Authority

Court of Appeal
16 December 2022
1,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused 62 former port workers more time to appeal because they could not explain their long delays in filing.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Mombasa (SG Kairu, JA) on a notice of motion dated May 12, 2022 in which Mwinyihaji Mwinzangu and 61 others sought leave to appeal out of time against a judgment of Rika J of the Employment and Labour Relations Court at Mombasa delivered on May 29, 2020, striking out their claim for want of jurisdiction. The applicants, former Kenya Ports Authority employees, had claimed they were grossly underpaid their gratuity and denied membership of and pension entitlements under the respondent's pension scheme. Their counsel relied on the established extension-of-time principles in Leo Sila Mutiso, Andrew Kiplagat Chemaringo and Fakir Mohamed, citing the applicants' advanced age, deaths of some appellants, and difficulty obtaining instructions. The respondent opposed, highlighting unexplained delays: the notice of appeal was filed 42 days out of time on July 12, 2020, served 44 days later, and the application came months after the certificate of delay issued on November 23, 2021. Applying the Salat and Fakir Mohamed principles, the court held that no satisfactory explanation was offered for the delays, noting that instructions to appeal were presumably held when the notice was filed in July 2020. The arguability argument was also found tenuous, since the claim was struck out for want of jurisdiction on the strength of the Supreme Court's decision in Albert Chaurembo Mumba, which held that pension disputes fall outside the courts' province. The application was dismissed with costs to the respondent. The decision binds subordinate courts and confirms that unexplained delay defeats even arguably meritorious appeals.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have given satisfactory explanation for the delay in filing and serving the notice of appeal and in lodging the record of appeal
  2. 2.Whether the court should exercise its discretion to admit the appeal out of time

Key legal issues

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01

Satisfactory explanation for delay

Holding

The applicants failed to satisfactorily explain the delay in filing the notice of appeal out of time, the delay in serving it, and the delay between the certificate of delay and the application

Reasoning

The notice of appeal was filed 42 days out of time and served 44 days later without explanation. The certificate of delay issued on November 23, 2021, yet the application was only dated May 12, 2022. The claim that instructions were difficult to obtain could not explain delays after the notice of appeal was filed in July 2020, when instructions were presumably already held.

02

Arguability of the intended appeal

Holding

The argument that the appeal was arguable with high chances of success was tenuous because the suit was struck out for want of jurisdiction pursuant to a Supreme Court decision on pension disputes

Reasoning

The ELRC struck out the claim for want of material jurisdiction, holding that pension disputes belong to the RBA mechanism and not to the courts, following Albert Chaurembo Mumba. An appeal against a jurisdictional strike-out grounded in binding Supreme Court authority had dim prospects, weakening the applicants' case for discretionary relief.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy, not a right, granted at the court's discretion to a deserving party who must explain the delay to the court's satisfaction
  • The Court of Appeal's discretion under rule 4 is unfettered but must be exercised judicially on a case-by-case basis, considering relevant factors such as delay, its explanation, prejudice and public interest

Court orders

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  1. 1.The application dated May 12, 2022 is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court at Mombasa
ELRC Cause No. 57 of 2014 (Formerly High Court Civil Case No. 149 of 2003)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time to appeal)

Relief refused

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Extension of time to admit the appeal out of time

No satisfactory explanation for the delays; arguability tenuous given the suit was struck out for want of jurisdiction on the strength of a Supreme Court decision

p. 3

Costs

The application fails and is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court
p. 2Nature of extension of time
Although the court has unfettered discretion under rule 4 of the Court of Appeal Rules, that discretion should be exercised judicially. Each case must be considered on its own facts.
p. 2Judicial exercise of rule 4 discretion
The application fails and is dismissed with costs to the respondent.
p. 3Final orders

Issues in the judgment

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minor

Certificate of delay date stated inconsistently in the judgment

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, "Mwinzangu & 61 others v Kenya Ports Authority", Case Analysis (2022). Civil Application 031 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1389/eng@2022-12-16

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