Sai Electricals & Hardware Ltd v Kenya Union of Commercial, Food & Allied Workers (Civil Application E054 of 2025) [2025] KECA 2025 (KLR) (27 November 2025) (Ruling)

Sai Electricals & Hardware Ltd v Kenya Union of Commercial, Food & Allied Workers (Civil Application E054 of 2025) [2025] KECA 2025 (KLR) (27 November 2025) (Ruling) Neutral citation: [2025] KECA 2025 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT ELDORET CIVIL APPLICATION E054 OF 2025 JM MATIVO, JA NOVEMBER 27, 2025 BETWEEN SAI ELECTRICALS & HARDWARE LIMITED ..................................  APPLICANT AND KENYA UNION OF COMMERCIAL, FOOD & ALLIED WORKERS ............................................................................................ RESPONDENT (Being an application for extension of time against the Judgment of the Employment and Labour Relations of Kenya at Eldoret (M. Onyango, J.) dated 11th June, 2025 in ELRC No. E021 of 2022) RULING 1. Sai Electrical & Hardware Limited (the applicant) has approached this court by way of notice of motion dated 1st September 2025 seeking two substantive reliefs namely that: a. the court be pleased to extend time to lodge and serve notice of appeal. b. the notice of appeal dated 29th July 2025, lodged on 4th August 2025 in the Superior Court and served on 4th August 2025 be validated upon the grant of extension of time and it be deemed to have been duly served. 2. The application is premised on rule 4 of this Court’s Rules, 2022. It is supported by grounds on its body and a supporting adavit sworn on 1st September 2025 by Simon Alega Wamukayo who is the applicant’s General Manager. The application is not opposed although the respondent was served with a hearing notice on 11th November 2025 through (kucfaw16@gmail.com) and was informed of the hearing date and required to le written submissions, the respondent has not complied. 3. The grounds in support of the application are that:- (a) being dissatised by Judgment delivered on 11th July 2025 the applicant instructed its erstwhile advocate to le a notice of appeal and request for certied proceedings in time; (b) the applicant learnt that its erstwhile advocate had not led a notice of https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2025/eng@2025-11-27 1 appeal as it had directed on 20th July 2025 ; (c) the applicant promptly instructed its current advocate who prepared a notice of appeal dated 29th July 2025 and wrote to the applicant’s erstwhile advocate requesting him to le a consent letter for him to come on record; (d) the failure to le an appeal on time was not by design, since the applicant was mislead by its erstwhile advocate; (e) the intended appeal raises arguable germane matters, namely, that the learned judge erred in holding that the respondent lacked jurisdiction to represent the grievant. 4. The applicant’s counsel vide submissions dated 19th November 2025 maintained that the delay of about 49 days was not inordinate and the delay was caused by the applicant’s erstwhile advocate who misled it. Therefore, an innocent party should not suer the mistakes of its erstwhile advocate. 5. Counsel also submitted that the memorandum of appeal annexed to the instant application and marked SAW-6, demonstrates that the intended appeal raises arguable grounds and that the respondent will suer no prejudice that cannot be atoned by an award of damages. 6. I have considered the application, the adavit in support thereto and its annextures. The only question for determination is whether the applicant has met the threshold for the exercise of the court’s discretion to grant leave for it to le and serve a notice of appeal and record of appeal out of time. The Supreme Court of Kenya pronounced itself in the question of extension of time in the case of Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR, and stated as follows: “ The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s ow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 7. Based on the cited decision, it is apparent that this application will be dispensed by determining whether the applicant has tendered sucient reasons for not ling its notice of appeal within the stipulated time and whether the respondent will suer any prejudice should the application be allowed. 8. In the present application, the applicant explained the reason for the delay in lodging the appeal in time to inaction on the part of his former advocate. The judgement was delivered by the Employment & Labour Relations Court on 11th July 2025. The applicant states that it instructed its erstwhile advocate to lodge a notice of appeal against the decision since it was aggrieved with the same. The said advocate took no action and instead hoodwinked the applicant into believing that a notice of appeal had been led. Nevertheless, the applicant learnt that the notice of appeal had not been lodged within time on 20th July 2025. By that time, the period upon which the notice of appeal was supposed to have been led had lapsed. The applicant instructed its current advocate who sought consent to come on record, led a notice of appeal dated 29th July 2025 which was lodged on 4th August 2025, together with a letter dated 29th July 2025 bespeaking copies of certied typed proceeding. Subsequently, counsel led present application on 1st September, 2025. 9. It evident from the above narration that the applicant was not indolent. Whereas blaming his erstwhile advocate for the delay ling the notice of appeal is an attractive option, it is evident that the applicant followed up with its former advocate to establish whether or not the appeal had been led. This was 4 days after the lapse of the duration required to le a notice of appeal against the Judgment delivered on 11th July 2025. When the applicant discovered that no steps had been taken to actualize the appeal, it did not go to sleep. It promptly instructed its current advocate who promptly led a notice of appeal dated 29th July 2025, lodged on 4th August 2025 and led the present application. This court is persuaded that the applicant has suciently explained the reason for the delay. The length of delay is about 37 days. This period is not inordinate and the delay is excusable. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2025/eng@2025-11-27 2 10. In the end, I nd that the applicant merits the exercise of this court’s discretion for the above stated reasons. The application is thus allowed; the annexed notice of appeal dated 29th July 2025 be and is hereby deemed as properly led and served. The applicants are directed to le and serve a record of appeal within 30 days of this ruling. Costs shall abide the appeal. 11. Orders accordingly. DATED AND DELIVERED AT ELDORET THIS 27TH DAY OF NOVEMBER, 2025. J. MATIVO ........................... 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/2025/2025/eng@2025-11-27 3