Kenya Aviation Workers Union v Kenya Airways Limited (Civil Appeal (Application) E198 of 2023) [2024] KECA 1945 (KLR) (20 December 2024) (Ruling) Neutral citation: [2024] KECA 1945 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CIVIL APPEAL (APPLICATION) E198 OF 2023 W KARANJA, J MOHAMMED & AO MUCHELULE, JJA DECEMBER 20, 2024 BETWEEN KENYA AVIATION WORKERS UNION ............................................. APPLICANT AND KENYA AIRWAYS LIMITED ............................................................. RESPONDENT (Being a reference from the decision of M’Inoti, JA. dated 11th October 2024 in an application seeking to extend the time to file and serve a record of appeal out of time against the Judgment of the Employment and Labour Relations Court at Nairobi in ELRC No. 1448 of 2015) RULING 1. Rule 57(1)(b) of the Court of Appeal Rules, 2022 provides that where any person is dissatised with the decision of a single Judge, he can apply to the full court to have it varied, discharged or reversed. This Court has variously held that where such a reference to the full Court is under consideration, the applicant must demonstrate that the learned single Judge did not judiciously exercise his discretion because he disregarded a relevant matter or regarded an irrelevant matter or acted on a misapprehension of evidence or applicable law. (See Makove -vs- Statutory Manager United Insurance Company Limited & 196 Others, Civil Appeal (Application) No. 279 of 2009, and Kimathi & Another -vs- Muriuki & 12 Others, Civil Appeal (Application) No. 61 of 2020). 2. On 11th October 2024 the learned M’Inoti, JA, delivered a ruling in an application brought under Rule 4 of this Court’s Rules in which the applicant, Kenya Aviation Workers Union, had sought the extension of time to appeal the decision dated 10th June 2022 rendered by the learned Rika, J. of the Employment and Labour Relations Court at Nairobi. The applicant’s suit against the respondent, Kenya Airways Limited, had been dismissed. 3. Aggrieved by the dismissal, the applicant had on 14th June 2022 led a notice of appeal to challenge the decision. The application that the learned M’Inoti, JA. dismissed had sought the extension of time to https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1945/eng@2024-12-20 1
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le and serve the record of appeal. The application was led on 17th May 2023. In the adavit sworn by Winnie Kasyoka Mumo in support of the application, she averred that the reasons why she had delayed in ling the appeal were that her advocates had, along with the notice of appeal, sought typed proceedings and a certied copy of the judgment from the trial court. The advocates, however, sought that she deposits with them Kshs.500,000 being legal fees to pursue the appeal. She had been dismissed from employment by the respondent and that was why she had sued. Then, her autistic son had been hospitalized. She could not raise the money. It was not until she had sold her piece of land that she was able to raise the money, but by then the time for appealing had passed. Hence the application to extend time. 4. The facts of the dispute in the superior court were that, on 18th August 2015, the applicant, in its capacity as a trade union, led a suit against the respondent claiming damages for wrongful dismissal of one of its members, Winnie Kasyoka Mumo. This is the claim that was heard and dismissed. 5. In dismissing the application to extend time to appeal, the learned M’Inoti, JA. observed that, the impugned judgment having been rendered on 10th June 2022 and the application having been led on 17th May 2024, there had been a delay of 11 months. Further, there was no indication whether the sought proceedings and judgment had been obtained or whether the appeal had been led. In these circumstances. It was held that, the delay had been inordinate. 6. The learned Judge also noted that the applicant was a registered trade union under section 21 of the Labour Relations Act and had capacity to sue and be sued. It was the party that had led the claim in the superior court and, when it lost, it had led the notice of appeal. It was the intended appellant, yet it had not oered any explanation regarding the delay. The learned Judge observed that, under Rule 77(1) of the Court of Appeal Rules, the said Winnie Kasyoka Mumo, being a party aected by the dismissal of the claim, was at liberty to appeal, but had not. Her personal circumstances could not explain the reasons why the applicant had delayed in ling the appeal, particularly when considered that as a member of the applicant she was entitled to representation by the applicant. It was for these reasons that the quest to extend time was declined. 7. In urging the reference Mr. Kyalo Mbabu, learned counsel for the applicant urged the same reasons on which the application had been dismissed. On the other hand, Ms. Mbonyo learned counsel for the respondent reiterated that because Winnie Kasyoka Mumo was not the applicant, her adavit could not be used to support the application; that she had no notice of appeal or application of her own. 8. We have carefully considered the application and the submissions, against the impugned ruling. In our view, there has been no demonstration that the learned Judge injudiciously exercised his discretion. We have not found anything to show that the learned Judge failed to consider a relevant factor or considered an irrelevant fact or that he misapprehended the material placed before him, or the applicable law. 9. The consequence is that the application is not merited and is dismissed with costs. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER 2024. W. KARANJA ........................................ JUDGE OF APPEAL JAMILA MOHAMMED ........................................ https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1945/eng@2024-12-20 2
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JUDGE OF APPEAL A.O. MUCHELULE ..................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1945/eng@2024-12-20 3
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