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ELRCDismissedCause 150 of 2018 and Cause 151 of 2018 (Consolidated)· [2020] KEELRC 1337 (KLR)
Jacqueline Katuku Kasinga & another v Kenya Fresh Produce Exporters Limited [2020] KEELRC 1337 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#Before the Employment and Labour Relations Court at Nyeri were two consolidated notice of motion applications dated 25 November 2019 by Claimants Jacqueline Katuku Kasinga (Cause 150 of 2018) and Daniel Mutua Mwendwa (Cause 151 of 2018) against Kenya Fresh Produce Exporters Limited. The Claimants, dissatisfied with the court's decision of March 2019, sought leave for new advocates to come on record and extension of time to file and serve memoranda of appeal, the time having lapsed. The motion was apparently unopposed; no affidavit of service was on record. The Claimants argued that delay was occasioned by their former advocates, who filed notices of appeal on time but failed to file the records of appeal despite receiving certified proceedings around July, and relied on authorities including Leo Sila Mutiso v Rose Hellen Wangari Mwangi and Philip Chemwolo v Augustine Kabede on mistake of counsel. The court restated the factors for extension of time - length and reason for delay, chances of appeal succeeding, prejudice, and undue delay - and held that extension is an equitable remedy, not a right, with the burden on the applicant to explain the delay. The court found the explanation inadequate: the Claimants could not account for the period from March 2019 to November 2019 or how they lost contact with their advocates while their new advocates could reach them. Both applications were dismissed with no order as to costs. Judgment was delivered online under the COVID-19 Practice Directions, with precipitate action stayed for 14 days.
Key legal issues
#01
Whether the delay in filing the records of appeal was satisfactorily explained
Holding
It was not; the court declined to exercise its discretion in the Claimants' favour
Reasoning
The court applied the established factors: length of delay, reason for delay, chances of appeal succeeding, prejudice to respondent, and undue delay. Although mistake of counsel can be excused, the Claimants failed to explain the period from 26 March 2019 to November 2019, including how they lost contact with their advocates yet the new advocates reached them. Without a satisfactory explanation the discretion could not be exercised in their favour, making discussion of the intended appeal's merits unnecessary.
p. 2
Legal principles established
#- Extension of time is an equitable remedy available at the court's discretion to a deserving party, not a right
- The applicant for extension of time bears the burden of laying a basis to the court's satisfaction, including explaining any reasonable cause for delay
Court orders
#- 1.The two applications in Cause 150 of 2018 and Cause 151 of 2018 are dismissed
- 2.No order as to costs
- 3.Precipitate action arising from the judgment automatically stayed for 14 days
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules (extension of time), invoked by the applicants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacqueline Katuku Kasinga & another v Kenya Fresh Produce Exporters Limited [2020] KEELRC 1337 (KLR)", Case Analysis (2020). Cause 150 of 2018 and Cause 151 of 2018 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1337/eng@2020-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.