Masha v Kenga & 3 others (Miscellaneous Application E026 of 2023) [2024] KEELC 3626 (KLR)
The bottom line
#The Employment and Labour Relations Court in Malindi dismissed a request to file an appeal 24 years late, stressing that extension of time must be earned, not assumed.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of approximately 24 years was satisfactorily explained
The delay was not satisfactorily explained; the applicant's reasons (late receipt of letters of administration and that his father, not he, was the party in the primary suit) were held not pertinent, and the applicant was neither a party nor were the respondents parties in the primary suit
The court applied the Salat principles, holding that a party seeking extension bears the burden of laying a basis and explaining the delay. Here the impugned order dates to 1999, roughly 24 years before the application. The applicant's explanation - late letters of administration and his father's involvement in the primary suit - was deemed insufficient, and the parties to the intended appeal were never joined in the primary suit.
Whether the absence of a draft Memorandum of Appeal renders the application for extension of time incompetent
Yes - without the Memorandum of Appeal or the impugned orders, the court cannot speculate on what appeal there would be or determine whether there is an arguable appeal
Relying on Rika J in Benedict Ojou Juma, the court held that where no draft Memorandum of Appeal is attached, the court has no way of forming a view on the presence of an arguable appeal. In this case neither the Memorandum nor the 1999 orders of Hon. Muneeni were before the court, so the arguability of the intended appeal could not be assessed.
Legal principles established
#- An applicant for extension of time must lay a basis to the satisfaction of the court; extension is an equitable remedy available only to a deserving party at the court's discretion
- Without a draft Memorandum of Appeal the court cannot form a view on whether there is an arguable appeal
Court orders
#- 1.Motion dated 29th May 2023 dismissed with costs
- Jurisdiction invoked
- Discretionary jurisdiction to enlarge time to appeal (the judgment does not cite the specific enabling provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masha v Kenga & 3 others (Miscellaneous Application E026 of 2023) [2024] KEELC 3626 (KLR)", Case Analysis (2024). Motion dated 29th May 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3626/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.