East African Portland Cement Company v Kenya Chemical & Allied Workers Union & 3 others (Civil Appeal (Application) E532 of 2023) [2024] KECA 1317 (KLR)
The bottom line
#Kenya's Court of Appeal let a company file its appeal one day late, ruling that a brief e-filing glitch is excusable and the right to appeal outweighs minor delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has established reasonable grounds to warrant extension of time to file and serve its record of appeal out of time
- 2.Whether the delay of one day in completing e-filing payment was inordinate and whether the explanation offered was plausible
- 3.Whether the applicant has an arguable appeal
- 4.Whether the respondents would suffer prejudice if the extension is granted
- 5.Whether the earlier dismissal of an application for stay of execution bars the present application
Key legal issues
#Reasonableness of the delay in filing the record of appeal
The one-day delay in completing payment after uploading the record on the last filing day was neither inordinate nor unreasonable, and the explanation of a technical hitch with the e-filing system was plausible.
The court applied the Salat principles, noting that the applicant bore the burden of explaining the delay. It accepted, on the annexed evidence including certified SMS records, that the record of appeal was uploaded on the last day for filing at 8.09 am and that payment failed due to an e-filing system error, with payment completed only the following day. A one-day delay attributable to a technical hitch was found excusable.
Arguability of the intended appeal
The intended appeal was arguable because at least one ground raised arguable issues, namely that the superior court decided on sympathy and extraneous matters and framed its own issues not raised by the parties.
The court reiterated that an applicant need not raise a multiplicity of grounds; a single arguable ground suffices, and the ground need not be one that must succeed. Perusing the memorandum of appeal, the court identified complaints that the superior court ignored the evidence and framed issues of its own, which it considered sufficient to demonstrate arguability, citing Somak Travels Ltd v Gladys Aganyo.
Effect of the earlier refusal of stay of execution
The prior dismissal of a stay application relating to a different, earlier ruling of the superior court was irrelevant and no bar to the present application for extension of time to appeal against a later ruling.
The respondents argued that the dismissal of the applicant's stay application showed the appeal was not arguable. The court examined the ruling of 24th November 2023 and found it concerned a ruling delivered on 16th May 2023, whereas the present application concerned the ruling of 11th July 2023. Since the two applications sought different orders concerning different decisions, the earlier refusal had no bearing on the right to appeal the subsequent ruling.
Prejudice to the respondents and the right of appeal
The only prejudice to the respondents was delay, which was outweighed by the applicant's constitutionally underpinned right of appeal.
Weighing the parties' interests, the court found the respondents would suffer only the prejudice of delay. Against this, the applicant held a constitutionally underpinned right of appeal which should not be denied or curtailed. Balancing these interests, the court concluded that the applicant's right of appeal should prevail and that the discretion to extend time ought to be exercised in its favour.
Legal principles established
#- 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, guided by the Salat principles.
- An applicant for extension of time need only raise one arguable ground, which need not be a ground that must succeed on appeal.
- The dismissal of an application for stay of execution of an earlier ruling does not bar an appeal against a subsequent ruling.
Court orders
#- 1.The application dated 10th November 2023 be and is hereby allowed
- 2.The record of appeal lodged on 18th September 2023 be deemed to be duly filed
- 3.The applicant do serve the record of appeal upon the respondents within twenty one (21) days from the date of this ruling
- 4.The costs of this application be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Cause No. 2119 of 2014
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, 2022
Quotable passages
#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. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
I am guided that an applicant need not raise a multiplicity of grounds, just one arguable ground is sufficient.
The ruling declining a stay of orders made prior to the application under consideration in this matter cannot be a bar to right to appeal a ruling made subsequently.
The application dated 10th November 2023 be and is hereby allowed;
That the record of appeal lodged on 18th September 2023 be deemed to be duly filed;
Issues in the judgment
#The judgment refers to the Salat decision as 'independent Eiectoral and Boundaries Commission' with apparent typographical errors (OCR artifacts) throughout, e.g. 'afidavits', 'sufier', 'difierent'.
The respondent's replying affidavit is described as asserting that payment attempts 'were dated next day', yet the court found the applicant uploaded the record on the last day and paid the following day; the judgment does not reconcile this factual discrepancy expressly beyond accepting the applicant's explanation.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Okoth and Kiplagat Advocates v Procurement Administrative Review Board & 3 others (Civil Appeal E401 of 2026) [2026] KECA 1212 (KLR)[2026] KECA 1212 (KLR)26 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "East African Portland Cement Company v Kenya Chemical & Allied Workers Union & 3 others (Civil Appeal (Application) E532 of 2023) [2024] KECA 1317 (KLR)", Case Analysis (2024). Notice of Motion dated 10th November 2023 (arising from ELRC Cause No. 2119 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1317/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.