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ELRCDismissedNotice of Motion dated 31/5/2023 (ELRC Petition)· [2023] KEELRC 2658 (KLR)

Midega v Kenya Electricity Generating Company Limited (Petition E196 of 2021) [2023] KEELRC 2658 (KLR)

Employment and Labour Relations Court
26 October 2023
MNMathews N. Nduma
1,229 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused KenGen more time to appeal, confirming that wanting a legal opinion does not excuse missing appeal deadlines.

What this practically means

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Executive summary

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The respondent/applicant, an employer, moved the Employment and Labour Relations Court by Notice of Motion dated 31st May 2023 seeking extension of time to file a Notice and Memorandum of Appeal against the judgment of Mathews N. Nduma, Judge, delivered on 13th April 2023, in which the court had held that the petitioner, a person with disability, should retire at 65 years rather than 60, pursuant to Regulation 70(1)(b) of the Public Service Commission Code of Regulations, and directed that his retirement age be extended accordingly. The applicant sought also to have its Notice of Appeal dated 18th May 2023 deemed properly filed. The applicant attributed the delay to the need to obtain legal opinion because of a conflicting decision in Henry Nyabuto Oyano v Kenya Electricity Generating Company PLC (2021) eKLR, asserting an arguable appeal raising issues on the rights of persons with disabilities. The petitioner opposed, arguing there was no sufficient justification or arguable appeal, that he stood to suffer prejudice, and that the applicant's Human Resource Manager had already disobeyed the court. Applying Section 7 of the Appellate Jurisdiction Act, Section 95 of the Civil Procedure Act, and the principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court held the roughly 17-day delay was not inordinate but the explanation was insufficient: seeking legal opinion is not a justification for missing the appeal period, no steps had been taken to secure certified proceedings, and the petitioner would suffer prejudice in enjoying the fruits of his judgment. The application was dismissed with costs.

Key legal issues

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01

Whether the delay of about 17 days in filing the Notice of Appeal was excusably explained

Holding

The delay was not inordinate, but the explanation - the need to obtain a legal opinion owing to a conflicting decision of a court of concurrent jurisdiction - was insufficient and not justifiable.

Reasoning

The court accepted that a 17-day delay is not inordinate, but held that seeking third-party legal opinion cannot justify non-compliance with mandatory rules of practice. Approving such an excuse would open floodgates for litigants who disagree with a judgment to delay noting appeals while seeking opinions elsewhere. The applicant also took no steps to secure certified copies of proceedings and judgment.

p. 3
02

Whether the petitioner would be prejudiced if extension of time were granted

Holding

The petitioner, a person with disability entitled to retire at 65 rather than 60, would suffer immense prejudice since implementation of the judgment is time-sensitive.

Reasoning

The judgment's ratio concerned the retirement age of a claimant with disability under Regulation 70(1)(b) of the Public Service Commission Code of Regulations. Time for implementation was of the essence, and the applicant could not pursue the desire to have a conflicting point settled on appeal at the expense of the petitioner's entitlement to enjoy the fruits of his judgment.

p. 3

Legal principles established

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  • Whether or not to extend time for appealing is discretionary, taking into account the length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent.
  • Seeking a legal opinion on a judgment is not of itself a bar to, or a justifiable reason for, failing to file a notice of appeal within the prescribed time.

Court orders

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  1. 1.The application dated 31/5/2023 seeking extension of time to file the Notice and Memorandum of Appeal is dismissed
  2. 2.Costs of the application awarded to the petitioner/respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Civil Procedure ActSection 95
  • Public Service Commission Code of RegulationsRegulation 70(1)(b)

Cases cited (3)

  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    Nairobi CA No. 255 of 1997
  • Kenya Breweries Limited vs Lawrence Ndutu & 6000 Others
    [2014] eKLR
  • Henry Nyabuto Oyano -vs- Kenya Electricity Generating Company PLC and Another
    (2021) eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act and Section 95 of the Civil Procedure Act

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, "Midega v Kenya Electricity Generating Company Limited (Petition E196 of 2021) [2023] KEELRC 2658 (KLR)", Case Analysis (2023). Notice of Motion dated 31/5/2023 (ELRC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2658/eng@2023-10-26

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