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ELRCAllowedNot stated in the judgment (arising from Busia CM ELRC Case No. 4 of 2020)· [2025] KEELRC 987 (KLR)

Obuya v Busia Sugar Industry (Miscellaneous Application E016 of 2024) [2025] KEELRC 987 (KLR)

Employment and Labour Relations Court
27 March 2025
1,511 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 allowed a worker to appeal a year late, accepting lack of money as a good reason for the delay.

What this practically means

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Executive summary

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By a notice of motion dated 25th November 2024, the applicant sought leave to appeal out of time against the judgment of E. Nyaloti, Chief Magistrate, in Busia CM ELRC Case No. 4 of 2020 delivered on 31st October 2023. The application, expressed to be founded on Section 79G of the Civil Procedure Act and Orders 50 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, was supported by the applicant's affidavit and was unopposed. Counsel for the applicant identified a single issue - whether the application was merited - and relied on the Salat principles, Article 48 of the Constitution on access to justice, and authorities on reasonable delay and arguability. The applicant attributed the roughly one-year delay to financial incapacity to instruct an advocate. The court framed the issue as whether the applicant deserved an extension of time, restated the Salat criteria, and held that the delay was excusable and reasonably explained. On perusing the draft memorandum of appeal, the court found arguable issues, noting the trial magistrate had found the termination unlawful yet dismissed the claim for failure of proof on a balance of probabilities. As to prejudice, the respondent had not responded and would have an opportunity to respond to the appeal once filed. Allowing the application, the court directed the applicant to file the intended appeal within 60 days and take a mention date for directions, with no order as to costs. Judgment was delivered virtually at Bungoma on 27th March 2025 by David Nderitu, Judge.

Key legal issues

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01

Whether the delay of approximately one year in filing the intended appeal was excusable

Holding

The delay of about 11 months and 29 days was excusable and reasonably explained by the applicant's financial incapacity to instruct counsel.

Reasoning

The court applied the Salat principles. Judgment was delivered on 31st October 2023 and the application filed on 28th November 2024, roughly one year late. The applicant explained the delay as occasioned by lack of finances to instruct an advocate. The court accepted this explanation, holding the delay excusable and reasonably explained.

p. 4
02

Whether the intended appeal is arguable

Holding

The draft memorandum of appeal raises arguable issues, so the applicant discharged the burden of showing the intended appeal is arguable.

Reasoning

The court perused the draft memorandum of appeal and found arguable issues. Notably, counsel argued the trial magistrate found the termination unlawful yet dismissed the claim for failure of proof on a balance of probabilities - an apparent contradiction amounting to an arguable issue.

p. 4
03

Whether the respondent would suffer prejudice if leave is granted

Holding

No prejudice was shown; the respondent did not respond to the application and will have an opportunity to respond to the appeal once filed.

Reasoning

The respondent did not file a response despite proof of service. The court reasoned that the respondent would certainly have an opportunity to respond to the appeal once filed, and therefore no prejudice arose from granting the extension.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the discretion of the Court, assessed against factors including the length of and reason for the delay, arguability of the appeal, and prejudice to the respondent.
  • An appeal may be admitted out of time where the appellant satisfies the court that there was good and sufficient cause for not filing the appeal in time.

Court orders

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  1. 1.The application dated 25th November, 2024 is merited and is hereby allowed
  2. 2.The applicant shall file the intended appeal within 60 days of this ruling and thereafter take a mention date for directions on the hearing and disposal of the appeal
  3. 3.There is no order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 12
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 18
  • Constitution of KenyaArticle 48

Cases cited (4)

  • Nicholas Kiptoo Korir Salat v IEBC & 7 others
    [2014] eKLR
  • Paul Musili Wambua v Attorney General & 2 others
    (2015) eKLR
  • Jaber Mohsen Ali & Another v Priscillah Boit
    (2014) eKLR
  • Joseph Gitahi Gachau & another v Pioneer Holding (Africa) Limited & 2 others
    [2015] eKLR
On appeal from
Chief Magistrate's Court at Busia (ELRC)
Busia CM ELRC Case No. 4 of 2020
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Rules 12 & 18 of the Employment and Labour Relations Court (Procedure) Rules, 2024

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, "Obuya v Busia Sugar Industry (Miscellaneous Application E016 of 2024) [2025] KEELRC 987 (KLR)", Case Analysis (2025). Not stated in the judgment (arising from Busia CM ELRC Case No. 4 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/987/eng@2025-03-27

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