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ELRCDismissed· [2019] KEELRC 2604 (KLR)

Stephen K. Kiyen v Kenya Farmers Association [2019] KEELRC 2604 (KLR)

Employment and Labour Relations Court
14 November 2019
ANAbuodha Jorum Nelson
1,240 words in judgment
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The bottom line

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A Kenyan court refused to extend time to appeal after a five-year delay because the applicant gave no credible explanation and hid a prior failed lawsuit.

What this practically means

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Executive summary

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By a Notice of Motion dated 24th January 2019 the applicant sought enlargement of time and leave to file an appeal against the judgment of Mbogo (CM) in Eldoret CMCC No. 443 of 2011, delivered on 5th February 2013, in which he had claimed Kshs 2,052,394.60 for wrongful termination of employment, a declaration that his arrest and prosecution was malicious, and general damages. He explained the nearly six-year delay by asserting that judgment was delivered without notice, that an advocate named Manani held his brief without instructions, and that counsel within the court precincts misadvised him against appealing and to file a fresh suit, ELRC Case No. 104 of 2017, which was itself dismissed as res judicata on 18th December 2018. The applicant, citing Salat v IEBC and Factory Guards v Kitungi, urged that he had been vigilant and not indolent. The respondent, citing Murungi Kirigia v Catherine Kagwira and Philemon Cheruiyot Kenduiywa, opposed, emphasising the five-year delay, the unsubstantiated allegations against an anonymous advocate, and the prejudice of reopening the matter. The Court, applying the settled fourfold test (length of delay, reason, chances of success, prejudice), found that the applicant's affidavit failed to support the misadvice allegations on oath, that Counsel's submissions impermissibly introduced facts not in the application, and that non-disclosure of the ELRC suit was material. Holding the delay inordinate and unexplained, the Court dismissed the application with costs.

Key legal issues

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01

Whether the five-year delay in seeking extension of time was inordinate and explained

Holding

The delay was inordinate and unexplained; the blame placed on an anonymous advocate was unsubstantiated on oath

Reasoning

The applicant's supporting affidavit did not state on oath that judgment was to be delivered on notice, nor that an advocate held his brief; he only spoke of being misadvised without naming who misadvised him. In his submissions Counsel introduced facts not in the application, which the Court rejected as unprocedural introduction of additional facts.

p. 2
02

Material non-disclosure by the applicant

Holding

The applicant failed to disclose the subsequent ELRC suit (No. 104 of 2017) dismissed as res judicata

Reasoning

The Motion made no mention of ELRC Case No. 104 of 2017, which the applicant filed after the judgment in CMCC No. 443 of 2011 and which was dismissed as res judicata on 18th December 2018. The Court treated this omission as material non-disclosure, and reference to the suit only in submissions as improper introduction of additional facts.

p. 2
03

Prejudice to the respondent

Holding

Granting leave after five years would occasion prejudice and inconvenience to the respondent

Reasoning

In balancing the four settled factors, the Court found that the length of the delay and absence of a reasonable explanation outweighed any other consideration, and that reviving a five-year-old judgment would prejudice the respondent.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy, not a right, and the applicant must lay a basis for it, including a reasonable explanation for the delay
  • The Court considers the length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent
  • A party is not allowed to introduce new facts and evidence through submissions

Court orders

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  1. 1.The application dated 24th January 2019 is dismissed with costs

Authorities

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Cases cited (4)

  • Nicholas Kiptoo arap Korir Salat & 7 Others v I EBC
    (2014) eKLR
  • Factory Guars Limited v. Abel Vundi Kitungi
    (2014) eKLR
  • Murungi Kirigia v. Catherine Kagwira
    (2011) eKLR
  • Philemon Cheruiyot Kenduiywa v Hellen Chemeli and 3 others
    (2018) eKLR
On appeal from
Chief Magistrate's Court, Eldoret
CMCC No. 443 of 2011
Jurisdiction invoked
Inherent discretion to enlarge time to file an appeal out of period (application dated 24th January 2019)

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, "Stephen K. Kiyen v Kenya Farmers Association [2019] KEELRC 2604 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2604/eng@2019-11-14

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