Abyssinia Iron and Steel Ltd v Kenya Engineering Workers Union

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[3] The grounds in support of the application and which are reiterated in the supporting affidavit of its counsel are that: the Judgment of this Court and which the applicant intends to appeal against in the Supreme Court was delivered on the 28 th of November 2025 in the absence of its counsel. That the said judgment was initially slated for delivery on the 7th of November 2025 but it was not as it was not ready. That it was then indicated to the parties by court that it would be delivered on notice. [4] However counsel inadvertently failed to see the notice for delivery of Judgment sent by court on the 27th of November 2025 and the subsequent email dated 28th of November 2025 attaching the Judgment. Counsel only came to know of the Judgment on the 9 th of December 2025 when the same was shared with him by counsel for the respondent. Upon receipt of the same, he immediately filed a notice of appeal and proceeded to seek instructions on possibilities of lodging a further appeal to the Supreme Court of Kenya. When counsel received instructions, the timelines under Rule 42 of the Court of Appeal Rules for the filing of such an application had already lapsed necessitating the filing of the instant application in terms of Rule 43 of the Court of Appeal Rules. [5] The background to this application is that: by a majority Judgment of this Court delivered on 28th November, 2025, the Court held in part, Page 3 of 9

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that even though the CPMU (Central Planning Monitoring Unit) report which had indicated that the applicant’s financial position had deteriorated, the Page 4 of 9

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court was not bound by expert opinions as they were merely persuasive; that decision effectively allowed salary increment to the members of the respondent regardless of the fact that the applicant could not sustain such increment. The projection on the salary increment that the applicant will be obligated to pay as a result was in excess of Kshs.60,000,000/- in accrued salaries. [6] According to the applicant, the decision was contradictory, as in the same Judgment the court held that the question of wage increment ought to take into account productivity, cost of living and ability to pay by the applicant. Further, that the Court ought to have been guided by the Wage Guidelines Issued by the Government and the report by the CPMU, a statutory body under section 37 (1) of the Employment and Labour Relations Act, which had been sanctioned by the Court. It is the applicant’s position that the Court ought to have distinguished the CPMU report from any other expert report as the CPMU is a statutory body whose findings ought to be considered and taken in the absence of any other rival report. [7] Being dissatisfied with the said decision, the applicant intends to appeal to the Supreme Court under the Provisions of Article 163 (4) (b) of the Constitution on grounds that the: intended appeal raises various issues of general public importance: first, the effect of the impugned Page 5 of 9

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decision is that employers are bound to suffer in the event that courts Page 6 of 9

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proceed to ignore CPMU reports on productivity and ability to pay. The net effect would be the closure of companies through consequential bleeding. That the intended appeal therefore seeks the Supreme Court's interpretation of the Provisions of section 37 (1) of the Employment and Labour Relations Act; the extent to which a report under the section is binding on courts; and whether there ought to be a distinction between an ordinary expert report and a report under a statute sanctioned by the Court. [8] Further the impugned decision if enforced possess huge public policy ramification as the same would lead to unnecessary layoffs, underemployment and investor lethargy negatively impacting the production sector of-the economy. Further, the decision renders section 37 (1) of the Labour Relations Act, 2016 inconsequential and as such, the mischief that section was created to cure would flourish. Accordingly, in the absence of leave to file an application for an order certifying this matter as one of general public importance warranting the grant of leave to appeal to the Supreme Court, the applicant is apprehensive that it shall be forced to shut down as a result of payment of unjustifiably astronomical sums, which it does not have. Undoubtedly, this will subject the applicant to irreparable harm and render the intended appeal nugatory. Page 7 of 9

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[9] The application was opposed by a replying affidavit sworn by its counsel. Counsel deposed that the application did not meet the threshold for certification under Article 163 (4) [b] of the Constitution of Kenya. That the applicant and its lawyers were all along indolent in their conduct, for instance they failed to serve memorandum of appeal in time in the impugned appeal which compelled the respondent to file an application to strike it out on that account which was however compromised when it came up for plenary hearing. That the applicant is either guilty of gross negligence or was deliberately frustrating the process of collective bargaining with the respondent using all manner of delaying tactics. That to allow the application will greatly prejudice the respondent’s members as they will be denied from benefiting from the fruits of their judgment. To the respondent, and given all the foregoing the commendable order was to dismiss the application with costs. [10] I have carefully considered the application, the grounds, the rival affidavits, the respective submissions of the parties and the law, and this is my take! Section 42 of the Court of Appeal Rules 2022 provides as follows; "Where no appeal lies unless the superior court certifies that a point of law of general public importance is involved, an application for such a certificate may be made— Informally, at the time when the decision against which it is desired to appeal is Page 8 of 9

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given; or by motion or chamber summons according to the practice of the superior court, within fourteen days after that Page 9 of 9

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decision: Provided that in any criminal appeal if the appellant is in prison and is not represented by an advocate, he or she shall be deemed to have complied with this rule if he or she gives the notice of motion or chamber to the officer in charge of the prison within that time.” [11] Section 43 of the Court of Appeal Rules provides that the Court may entertain an application for stay of execution, injunction, stay of further proceedings or extension of time for the doing of any act authorized or required by these Rules, notwithstanding the fact that no application has been made in the first instance to the lower court. [12] I am therefore satisfied that I have jurisdiction to entertain this application. However how is this jurisdiction exercised? The substantive power to extend time under this Court’s Rules is actually provided for by Rule 4 of the Court of Appeal Rules. That power is however exercised through unfettered judicial discretion and on caseby-case basis; neither is it exercised capriciously or whimsically. [13] The core principles and factors to be considered are essentially by weighing several well-settled factors rather than relying on a rigid formula. Nonetheless the guidelines appear to be first; the length and reason for the delay. The reason(s) must be clear, detailed and satisfactory. Unexplained or inordinate delay would ordinarily therefore not sell. The other consideration is the merit of the intended appeal. The intended appeal should not on the face of it appear Page 10 of 9

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frivolous. It should be such that it deserves a full hearing but not a guaranteed win. Prejudice Page 11 of 9

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caused to the respondent if the application is allowed is another consideration. [14] The court is called upon to determine whether allowing the application will cause unfair hardship, or prejudice to the opposing party that cannot be compensated and damages, and finally, the overall fairness and public interest is another consideration. In this regard, the court has to weigh whether shutting the applicant out would deny him fundamental rights of a fair hearing and whether public interest factors should apply (such as in certain constitutional or election matters). See generally, Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, Mangira & Another v Makori & Another [2005] 2 KLR 203 and Martin W, Nguru v Attorney General [2020] KECA 439 (KLR). [15] Applying the aforesaid parameters to the circumstances of this application, I note that the impugned judgment was delivered on 28 th November 2025. The applicant’s counsel got to know of it on 9th December 2026. The instant application was filed on 23 rd January 2026. The delay is therefore hardly two months which cannot be said to be inordinate. The reasons advanced for the delay are that the counsel for the applicant inadvertently failed to see the notice for delivery of Judgment sent by court on 27th of November 2025 and the subsequent email dated 28 th of November 2025 attaching the Page 12 of 9

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Judgment. Counsel only came to know of Page 13 of 9

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the Judgment on the 9th of December 2025 when the same was shared by counsel for the respondent. [16] Upon receipt of the Judgment, counsel filed a notice of appeal immediately and proceeded to seek instructions on possibilities of an appeal to the Supreme Court. Upon receiving instructions to do so, the timelines under Rule 42 of the Court of Appeal Rules had already lapsed necessitating the filing the instant application. To me these reasons appear plausible and persuasive and I buy them. [17] Of course I have considered the respondent’s complaint that the applicant and its advocates have all along been indolent in their conduct as regards this matter, for instance failing to serve memorandum of appeal in time and misdirecting this application to another law firm other than the respondent. I am not however satisfied that these acts were deliberate, given that the said application was subsequently compromised by consent of the parties. [18] Is the intended appeal frivolous? I have perused the intended grounds of appeal that will be raised in the Supreme Court and I cannot say that they are superfluous as they will seek the interpretation of section 37 (1) of the Employment and Labour Relations Act, 2016; the extent to which a report under the section is binding on courts and whether there ought to be a distinction between an ordinary expert report; and a report under Page 14 of 9

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a statute sanctioned by the Court. Page 15 of 9

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[19] As to prejudice, I appreciate that both parties may suffer some form of prejudice either way. For the applicant it will be called upon to pay upwards of 60,000,000/= in accrued salaries which is not a tidy sum. Tied to this is the fact that the impugned decision if enforced possess huge public policy ramifications as the same may lead to unnecessary layoffs. On the other hand, the respondent may only suffer slight delay in the execution of the judgment and decree as the application for certification is processed by this court. In this regard therefore, the scales of justice weigh heavily in favour of the applicant. [20] In the ultimate, I am satisfied that the application is merited and I allow it. The applicant is granted extension of time of fourteen (14) days from the date hereof to bring forth its application for leave to appeal to the Supreme Court. Costs shall be in the cause. Dated and delivered at Kisumu this 16th day of September, 2026. ASIKE-MAKHANDIA …………….……..……………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 16 of 9

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