East African Portland Cement Company v Kenya Chemical & Allied Workers Union & 3 others (Civil Appeal (Application) E527 of 2023) [2024] KECA 1314 (KLR)
The bottom line
#Kenya's Court of Appeal allowed East African Portland Cement to file its appeal record one day late, blaming a court e-filing system failure.
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 applicant should be granted an extension of time to file and serve its record of appeal out of time
- 2.Whether the one-day delay in filing the record of appeal was satisfactorily explained
- 3.Whether the intended appeal is arguable
- 4.What prejudice, if any, the respondents would suffer if the extension is granted
- 5.Whether the jurisdictional objection raised by the 3rd respondent (lack of leave to appeal against an interim garnishee ruling) can be determined on a rule 4 application before a single judge
Key legal issues
#Guiding principles for extension of time under rule 4 of the Court of Appeal Rules
The principles are those crystallized by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC: length of delay, reason for delay, possible arguability of the appeal, and prejudice to the opposite party.
The single judge applied the Salat framework. The delay here was only one day, caused by a technical hitch in the e-filing system when payment was declined on the last filing day. The grounds of appeal were found not idle, and the applicant's right to be heard outweighed the respondents' interest in enjoying the fruits of their judgment, especially given the sums involved and the complexity of execution.
Whether the one-day delay was adequately explained
Yes - the one-day delay was attributable to a technical failure of the e-filing system, not to the applicant.
The record was uploaded on 18th September 2023, the last filing day, but the e-filing system declined payment due to an internal technical failure; payment receipts reflected the following day. The court accepted this explanation as inadvertent and unintended, and characterized the delay as only one day.
Whether the jurisdictional objection raised by the 3rd respondent could be determined at this stage
No - the objection, based on absence of leave to appeal an interim garnishee ruling, was not a matter for a single judge on a rule 4 application.
The 3rd respondent argued that leave was required under section 75 of the Civil Procedure Act and Order 43 rule 1(1) before appealing a garnishee ruling, and that without leave the Court lacked jurisdiction. The judge held that the application before him was only for extension of time; there was no application to strike out the appeal, and the jurisdictional question, even if arguable, was not for a single judge.
Balancing the applicant's right to be heard against the respondents' right to enjoy the fruits of judgment
The applicant's right to be heard on the appellate process outweighed the prejudice to the respondents, given the astronomical amounts involved and the complexities of the execution process.
The respondents argued litigation must come to an end and the decree of 2015 remains unsatisfied. The court acknowledged this but held that the applicant still had a right to be heard, particularly considering the sums and complexity of execution, and that the right to appellate justice is constitutionally entrenched.
Legal principles established
#- A jurisdictional challenge to the appeal (e.g., absence of leave to appeal) is not a matter to be determined by a single judge on a rule 4 extension-of-time application.
- On an extension-of-time application the court does not determine the merits of the intended appeal; it is enough that the grounds are not idle.
- The right of access to appellate justice is constitutionally entrenched and weighs in the extension-of-time balance.
Court orders
#- 1.The application dated 10th November 2023 is allowed
- 2.The time to file and serve the applicant's record of appeal out of time against the ruling and orders of the ELRC delivered on 7th July 2023 in ELRC Cause No. 2119 of 2014 be and is hereby extended
- 3.The record of appeal lodged on 18th September 2023 be deemed to be duly filed
- 4.The record of appeal be served upon the respondents within twenty one (21) days from the date of the order
- 5.The costs of the application be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Cause No. 2119 of 2014
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, 2022
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.
these principles are firstly, the length of the delay. Secondly, reason for the delay. Thirdly, “possibly” arguability of the intended appeal and fourthly, any prejudice to be sufiered by the opposite party should the relief sought by the applicant be granted.
The applicant has explained the reason for the one day delay in filing, as a technical hitch in the court’s e-filing system. The delay involved in this application is one day.
The jurisdictional issue, even if it was to be heard is not a matter for a single judge.
According to the current jurisprudential trend the right to appellant justice is now constitutionally entrenched.
That the record of appeal lodged on 18th September 2023 be deemed to be duly filed;
That the costs of this application be in the appeal.
Issues in the judgment
#The 3rd respondent's replying affidavit is sworn on 12th March 2023, which predates the impugned ruling; the court itself notes this is likely an error for 2024.
Paragraph 15 refers to the filing timeline but the text omits the specific rule number ('as prescribed under rule of the Rules').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "East African Portland Cement Company v Kenya Chemical & Allied Workers Union & 3 others (Civil Appeal (Application) E527 of 2023) [2024] KECA 1314 (KLR)", Case Analysis (2024). Notice of Motion dated 10th November 2023 (arising from ELRC Cause No. 2119 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1314/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.