https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1056

Bidco Africa Ltd v Wangu & 294 others (Civil Appeal (Application) E278 of 2020) [2026] KECA 1056 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1056 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E278 of 2020 SG Kairu, P Nyamweya & AO Muchelule, JJA May 29, 2026 Between Bidco Africa Limited Applicant and Martin Wamae Wangu & 294 others & 294 others & 294 others & 294 others & 294 others & 294 others & 294 others & 294 others & 294 others Respondent (Being an application for extension of time to file an appeal out of time against the Ruling of the Employment and Labour Relations Court of Kenya at Nairobi (M. Onyango, J.) dated 7th November 2019inELRC Cause No. 1936 of 2015) Ruling 1.This ruling relates to a reference under Rule 57(1)(b) of the Court of Appeal Rules. The applicant, Bidco Africa Limited, is dissatisfied with the decision of the learned single Judge, Kiage, JA, delivered on 4th June 2021 dismissing its application for extension of time to file and serve, out of time, a record of appeal against the judgment and decree of the Employment and Labour Relations Court dated 7th November 2019 in ELRC Cause No. 1936 of 2015. 2.Urging the reference before us on 11th November 2025, learned counsel for the applicant Mr. Chacha Odera relied on the applicant’s written submissions dated 5th April 2023 which he orally highlighted. Counsel submitted that whilst a reference is not an appeal from the decision of the single judge, the circumstances obtaining in this case were novel on account of the unprecedented Covid-19 pandemic; that the delay in filing the record of appeal late was satisfactorily explained; and the applicant should therefore not be punished. It was urged that in other cases where delays were caused by the pandemic outbreak, the Court had extended time. An example cited, among others, was the case of Muthithi Investments Company Limited vs Commissioner of Prisons & 2 Others [2021] eKLR. 3.In opposition to the reference, learned counsel for the respondents Mr. Roy Mwenesi, relied entirely on the respondents’ written submissions dated 24th June 2025. It was submitted that the circumstances in this case are different from those in the cases cited by the applicant; that unlike in those cases, the applicant did not in the present case seek leave of the Court prior to filing the record of appeal out of time; and that no supporting evidence in the present case was provided of the alleged factual events leading to the delay. It was urged that litigation in this matter has dragged on for 10 years to the financial detriment of the respondent and that it has not been demonstrated that the learned single judge misdirected himself. 4.We have considered the reference and the submissions made by learned counsel. Regarding the principles applicable in a reference of this nature, the Court in the case of John Koyi Waluke vs. Moses Masika Wetangula & 2 Others [2010] eKLR, stated as follows:“Having considered all that has been urged before us in this reference we would say that we have stated time without number that in exercising the unfettered discretion under Rule 4 of this Court’s Rules, a single judge of the Court is doing so on behalf of the whole Court, and the full bench of the Court would only be entitled to interfere with the exercise of discretion if it be shown that in the process of exercising the discretion the single Judge has taken into account an irrelevant matter which he ought not to have taken into account, or that he failed to take into account a relevant matter which he ought to have taken into account or that he misapprehended some aspect of the evidence and the law applicable or short of these, that his decision was plainly wrong and could not have been arrived at by a reasonable tribunal properly directing itself to the evidence and the law. It is not enough, for example, to show the full Court that had it been sitting in place of the single Judge, it would have arrived at a different result.” 5.With that in mind, the applicant’s application for extension of time dated 12th October 2020 was based on the grounds that the judgment of the ELRC was delivered on 7th November 2019; that the applicant duly filed a Notice of Appeal on 21st November 2019 and also applied for typed copies of the proceedings and judgment; that between the time the certified copies of the proceedings and judgment were received and the record of appeal filed, COVID-19 pandemic struck and disrupted the court’s operations as well as the applicant’s advocates offices; that by the time the record of appeal was filed on 22nd August 2020, the statutory period within which it should have been filed had lapsed. An elaborate explanation in that regard was given in an affidavit sworn by Georgina Ogalo-Omondi, an advocate in the firm of Oraro & Company Advocates representing the applicant. 6.Upon considering the application and the submissions tendered before him, the learned single Judge, as already indicated, dismissed the application. In doing so, the learned Judge stated, and it is necessary to quote him at length:“To my mind the reasons proffered by the applicant are neither excusable nor satisfactory. All of them could have been mitigated if counsel and the firm in general were vigilant. I do not dispute that the courts scaled down operations as per the directive of the then Chief Justice Hon. David Maraga. However, the Chief Justice subsequently issued Practice Directions On Electronic Case Management on 4th April 2020 which provided for e-filing and e-service system to be adopted by courts. Further, Ouko, JA, President of the Court of Appeal (as he was then) issued Practice Notes For The Conduct Of Court Business During The Global Coronavirus Pandemic on 21st April 2020 which complemented the directions earlier issued by the Chief Justice. They included the e-filing of documents, e-payment and e-service of documents using email and WhatsApp platforms.The applicant has failed to satisfactorily demonstrate the steps taken to adhere to the rules between the month of April when the practice directions were issued, and June 2020 when the unfortunate COVID cases were reported at the firm. Moreover, after the lockdown was lifted on 7th July 2020 and the clerk was available, it is not explained why it took them six weeks to file the record of appeal.The Rules of this Court must be adhered to by parties at all times and parties in default should place material before the Judge whose favourable discretion is sought to show that they tried as much as possible to comply with them even when faced with challenges. It is my view that therefore a party who fails to do so makes it impossible for the Judge to extend relief. The discretion is a judicial one, to be exercised on the basis of principle and not whim or sympathy.” 7.It is clear from the ruling that the learned single Judge duly considered the explanation given by the applicant before concluding that the applicant had failed to satisfactorily demonstrate that it was deserving of the exercise of the Court’s discretion in its favour. 8.In our view, it is not shown that the Judge considered matters he should not have, or that he failed to consider matters that he should have, or that the decision reached is plainly wrong. We have no basis, therefore, for interfering with the decision of the learned single Judge. 9.The reference fails and is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY 2026.S. GATEMBU KAIRU, FCIArb, CArb......................................JUDGE OF APPEALP. NYAMWEYA.....................................JUDGE OF APPEALA. O. MUCHELULE....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR