Kenya National Private Security Workers Union v James & another (Miscellaneous Case E070 of 2024) [2024] KEELRC 2862 (KLR)

The court accepted it has discretion to extend time under Section 79G principles and that the discretion is equitable and fact-dependent. It applied the Salat principles and the Chemaringo and Omar Shurie formulations. The delay here exceeded one year; the applicant attributed it to being guards lacking time and money, and to counsel's failure to communicate the judgment, but offered no supporting evidence of employment, earnings, location or failed attempts to contact the advocate. The claimant's officials also showed inactivity from the close of pleadings in late 2022 to February 2024. Prejudice was found in forcing the respondent to defend a suit concluded over 1½ years earlier.

Relying on Bains Construction and Rajesh Rughani, the court held that an advocate is the client's agent under the maxim qui facit per alium facit per se, so the advocate's failure implicates the principal. Equally, a litigant must show interest in the case by following up. The grievants did not explain how or from where Mr. Wyclifie travelled to the advocate's office only in February 2024, and no evidence showed attempts to reach counsel by phone or mail had failed.

The court found it extremely difficult to weigh the arguability of the intended appeal, as only the Memorandum of Appeal dated 3rd May, 2024 was before it and neither party supplied a copy of the underlying judgment of 3rd May, 2023 dismissing the claim as res judicata. The memorandum per se was insufficient for assessing merit.