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ELRCDismissedNot stated in the judgment (file transferred from MC ELRC Cause No. 5 of 2022, Kisii)· [2024] KEELRC 1042 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Kisii Bottlers Ltd & another (Appeal 1 of 2024) [2024] KEELRC 1042 (KLR)

Employment and Labour Relations Court
24 April 2024
RSRADIDO STEPHEN
669 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 a union extra time to appeal because it could not explain why it filed roughly two weeks late.

What this practically means

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Executive summary

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The Kenya Union of Commercial, Food and Allied Workers moved the Employment and Labour Relations Court seeking leave to appeal out of time against the judgment of the Magistrates Court at Kisii in MC ELRC Cause No. 5 of 2022 delivered on 12 September 2023. The Respondents opposed, alleging laches and absence of plausible reasons for the delay. The Union had 30 days, up to 11 October 2023, to file a Memorandum of Appeal; it moved the Court on 27 October 2023, late by around two weeks, explaining that it had lost contact with the Grievants and could not obtain instructions. The Court held that discretion must be exercised judicially and not arbitrarily or capriciously, and that a party seeking its favourable exercise must show justifiable grounds. It found the Union's explanation inadequate: the Union did not disclose what means it used to trace the Grievants, and no Grievant filed an affidavit explaining why they did not contact the Union after judgment. The Court also noted a procedural anomaly - the Union approached the Court through an Appeal rather than a Miscellaneous Application - which the Registry could have rectified. Before concluding, the Court observed that the Grievants separated from the Respondents around 21 January 2016 while the Cause was filed in 2020. The Motion dated 26 October 2023 was dismissed with no order on costs, considering the social partnership between the parties. Judgment was delivered virtually, dated and signed in Kisumu on 24 April 2024 by Radido Stephen, Judge.

Key legal issues

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01

Extension of time to appeal - whether the explanation for delay justified granting leave

Holding

The Court declined to exercise its discretion in the Union's favour because no justifiable reasons were given for the delay of about two weeks.

Reasoning

The Union had 30 days, up to 11 October 2023, to file a Memorandum of Appeal and moved the Court on 27 October 2023. The explanation that the Grievants could not be traced was unsupported: the Union did not disclose the means used to reach them, and no Grievant filed an affidavit explaining why they did not contact the Union. The Court assumed the Grievants knew of the judgment.

p. 2
02

Laches and the latent limitation problem in the underlying Cause

Holding

The Court observed, before concluding, that the Grievants separated from the Respondents around 21 January 2016 while the Cause was filed in 2020.

Reasoning

The Court noted the apparent gap between separation (2016) and filing (2020) of the Cause before the Magistrates Court. This observation was made in passing and was not converted into a finding or order; its effect was left to the intended appeal.

p. 2

Legal principles established

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  • Discretion must be exercised judicially and not arbitrarily or capriciously, and a party seeking a favourable exercise of discretion must satisfy the Court that there are justifiable grounds

Court orders

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  1. 1.The Motion dated 26 October 2023 is found without merit and is dismissed with no order on costs considering the social partnership between the parties
On appeal from
Magistrates Court at Kisii
MC ELRC Cause No. 5 of 2022
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (reference to intended appeal against Magistrates Court judgment); judgment does not cite a specific constitutional/statutory provision

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, "Kenya Union of Commercial, Food and Allied Workers v Kisii Bottlers Ltd & another (Appeal 1 of 2024) [2024] KEELRC 1042 (KLR)", Case Analysis (2024). Not stated in the judgment (file transferred from MC ELRC Cause No. 5 of 2022, Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1042/eng@2024-04-24

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