SENIOR BEST E.P.Z. LIMITED v TAILORS AND TEXTILE WORKERS’ UNION [2011] KECA 115 (KLR)
The bottom line
#Kenya's Court of Appeal granted an extension of time because a party was never told when its Industrial Court award would be delivered.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction over appeals emanating from the Industrial Court, given that section 64(1) of the retired Constitution and section 3(1) of the Appellate Jurisdiction Act refer only to appeals from the High Court
- 2.Whether the applicant should be granted extension of time to file and serve a notice of appeal and record of appeal against the Industrial Court decision
- 3.Whether failure by the Industrial Court to notify a party of the date of delivery of the award constitutes a good reason for the delay
Key legal issues
#Jurisdiction of the Court of Appeal over Industrial Court appeals
Under the retired Constitution and the Appellate Jurisdiction Act the Court of Appeal's jurisdiction was confined to appeals from the High Court, but Article 164(3) of the 2010 Constitution widened it to appeals from any other court or tribunal prescribed by an Act of Parliament, and section 27 of the Labour Institutions Act purports to confer such jurisdiction over appeals on matters of law from the Industrial Court. The single Judge declined to resolve the issue definitively, leaving it to a full bench.
The Judge noted section 64(1) of the retired Constitution and section 3(1) of the Appellate Jurisdiction Act refer only to appeals from the High Court. However, the 2010 Constitution widened the Court's jurisdiction and section 27 of the Labour Institutions Act provides for appeals from the Industrial Court on matters of law. Because he sat as a single Judge restricted to Rule 4, he chose caution so a competent bench could determine the jurisdictional question.
Extension of time where the party was not notified of the delivery of the award
The applicant's counsel was never notified of the date of the reading of the award, which was read in the absence of both the applicant and its counsel. That failure is a sufficient reason to extend time notwithstanding the usual Rule 4 factors.
The court accepted on the affidavits that no notice of the delivery date was served, that the applicant learned of the award on 4th March 2010, applied promptly for certified copies, and had still not been furnished with the proceedings. Because the absence of notice was the main cause of the delay and the Rule 4 factors are not closed, the discretion was exercised in the applicant's favour with time limits imposed.
Legal principles established
#- Failure to notify a party of the date of the reading of an award is a good reason to extend time, because a party should not be shut out of justice by the fault of the court.
- The list of factors under Rule 4 of the Court of Appeal Rules governing extension of time is not closed.
- In exercising Rule 4 discretion, the court considers the length of delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent, but these may be overshadowed by a dominant factor such as absence of notice of delivery of the award.
Court orders
#- 1.Extension of time granted for the applicant to file and serve a notice of appeal within 7 days
- 2.Applicant to file and serve the record of appeal within 14 days using the available documents
- 3.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Industrial Court (Mombasa)
- Not stated
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules; appealability considered under Article 164(3) of the Constitution of Kenya 2010 and section 27 of the Labour Institutions Act (Act 12 of 2007)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Failure to notify a party of the date of the reading of the award or failure to serve an appropriate notice is in my view a good reason to extend time because it is just that an applicant be not shut out of the seat of justice due to the fault of the Industrial Court.
I am also aware that the list of factors under Rule 4 is not yet closed.
In the result, I grant the application on the terms that the applicant files and serves a notice of appeal within 7 days and files and serves record of appeal within 14 days using the available documents.
In the circumstances, I order that the costs of the application abide the outcome of the intended appeal. It is so ordered.
Issues in the judgment
#The names of the parties and the case number of this application are not stated anywhere in the judgment; the parties are identified only as 'the applicant' and 'the respondent'.
The judgment cites four Court of Appeal authorities without stating by whom they were cited or how they were treated; they appear in the court's own narrative, so treatment is recorded cautiously.
The citation for Dickson Ndegwa Mbugua contains a typographical error ('112 0f 2009').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SENIOR BEST E.P.Z. LIMITED v TAILORS AND TEXTILE WORKERS’ UNION [2011] KECA 115 (KLR)", Case Analysis (2011). Not stated in the judgment (arising from a three-judge Industrial Court decision delivered 24th February 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/115/eng@2011-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.