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Court of AppealDismissedCivil Application (Nai.) not stated in judgment· [2018] KECA 37 (KLR)

Kenya Chemical & Allied Workers v Ernest & Young Liquidators For Cotes Brothers E.a Ltd

Court of Appeal of Kenya
20 December 2018
1,680 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a union's plea for extra time to appeal because it blamed its lawyers and hid key facts, killing the appeal.

What this practically means

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Executive summary

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This was a single-judge application under Rule 4 of the Court of Appeal Rules, 2010 in which Kenya Chemical & Allied Workers sought an extension of time to file and serve its record of appeal and an order deeming its notice of appeal, filed on 27th March 2015, as properly filed. The intended appeal targeted a judgment of the Employment and Labour Relations Court delivered on 16th March 2015, in a consolidated suit, declining to order redundancy dues for the union's members, former employees of Coates Brothers (East Africa) Limited, then in liquidation. The notice of appeal was filed within time, but the memorandum and record of appeal were not lodged within the 60 days prescribed by Rule 82(1). The applicant blamed its former advocates, citing an erroneous certificate of delay and its instruction of new advocates in February 2017. The respondent, through the liquidator Peter Obondo Kahi, demonstrated inordinate and unexplained delay, non-disclosure of the true chronology, and that the applicant's current advocates had been involved since October 2016. Applying the settled Mutiso factors and the principle from Habo Agencies that parties cannot simply blame their advocates, the judge found unexplained periods of delay and that the applicant had been economical with the truth, withholding material facts until confronted by the replying affidavit. The application was dismissed with costs to the respondent. The intended appeal therefore never took off, and the liquidation of the Company continues.

Key legal issues

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01

Whether the delay in filing the record of appeal was sufficiently explained

Holding

The delay was not explained; the applicant withheld material facts and was economical with the truth, so the discretion was not exercised in its favour

Reasoning

The court found unexplained gaps between 9th February 2016 and 28th October 2016, and between the corrected certificate of delay of 11th November 2016 and the filing of the application on 29th March 2017. The applicant also failed to disclose in its application the true chronology, including the earlier certificate of delay issued on 9th February 2016 (with an erroneous year) and its current advocates' involvement since October 2016, only addressing these in a supplementary affidavit after the respondent exposed them.

p. 2
02

Whether blame can be placed wholly on previous advocates

Holding

No; a litigant bears responsibility to follow up its case even when represented

Reasoning

Relying on Habo Agencies Limited v Wilfred Odhiambo Musingo, the court held that parties cannot simply blame their advocates for transgressions in the conduct of litigation. The union, through its members and officials, was expected to show interest in the appeal. Even if the advocates were at fault, the applicant's own candour failures independently disentitled it to the extension.

p. 2

Legal principles established

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  • Extension of time under Rule 4 is discretionary and is governed by the length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent; the list is not closed
  • An applicant for extension of time must give a plausible explanation for the delay; blaming advocates alone is insufficient, as parties must follow up their cases
  • An applicant must be candid; withholding relevant information from the application disentitles it to the discretionary relief

Court orders

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  1. 1.The application dated 28th March 2017 is dismissed with costs to the respondent
On appeal from
Employment and Labour Relations Court
not stated in judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010

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, "Kenya Chemical & Allied Workers v Ernest & Young Liquidators For Cotes Brothers E.a Ltd", Case Analysis (2018). Civil Application (Nai.) not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/37/eng@2018-12-20

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