https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1598

Psenjen v Kenya Farmers Association Ltd (Civil Appeal (Application) E012 of 2026) [2026] KEELRC 1598 (KLR) (8 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1598 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Civil Appeal (Application) E012 of 2026 MA Onyango, J June 8, 2026 Between Joseph C. Psenjen Applicant and Kenya Farmers Association Limited Respondent Ruling 1.The application herein is dated 27th January 2026. The Applicant seeks orders that: -a.Spent.b.That this Honourable Court be pleased to grant the Applicant leave to file an appeal out of time against the ruling delivered on 10th June 2025 in Cause No. MCELRC Cause No. E259 OF 2024; Joseph C. Psenjen Versus Kenya Farmers Association Limited.c.That the Applicant be granted an extension of time, limited to 14 days from the date of this order, to file and serve a Memorandum of Appeal or the same annexed be deemed as properly filed upon payment of court.d.That the costs of this application be in the cause of the intended appeal. 2.The application is made under Rules 18 of the Employment and Labour Relations Court (Procedure Rules), section 1A, 1B,3A and section 79G of the Civil Procedure Act, Order 42 rule 6(1) and (2) of the Civil Procedure Rules,2010 and all other enabling provisions of the law. 3.The Application is supported by the grounds set out on its face and the Supporting Affidavit sworn by Joseph C. Psenjen, the Applicant herein, who deposes as follows: -a.The ruling appealed from contains a patent and material error by finding the Applicant’s employment terminated in August 2020, while the Respondent’s own letters dated 1st January 2022 and 22nd January 2022 unequivocally state the retirement/termination date as 1st February 2022.b.Crucially, and fatally to the Respondent's limitation defence, the Respondent made a series of partial payments to the Applicant towards the admitted terminal dues between 27th April 2022 and 9th January 2024 long after the alleged August 2020 retirement date.c.These part-payments, admitted by the Respondent in its own Defence (Paragraph 14), constitute a fresh acknowledgment of the debt under Section 23 of the Limitation of Actions Act, Cap 22, and give rise to a new cause of action from the date of each payment, thereby completely overriding the limitation defence under Section 90 of the Employment Act, 2007.d.The intended appeal is therefore of overwhelming merit and high chance success, as it challenges a fundamental factual error and raises a decisive point of law on acknowledgment and part-payment of debt.e.The delay in filing the appeal, was occasioned by the fact that ruling was delivered in the absence of the parties hence, the previous advocate was not aware of the ruling until sometime in August 2025, when the Applicant/claimant walked into his former Advocate's office to inquire status of his case.f.His then advocate advised him to come over in a week’s time/he will call him to update him on the status of his case.g.On 15th August 2025, the Applicant again visited his then advocate's office only to be advised that his case was dismissed by the court for Limitation of Action.h.The Applicant then requested his then advocate for pleadings which he was thereafter given.i.The delay in filing the appeal was minor, inadvertent, and occasioned by the Applicant's change of advocates and the time necessary to consolidate funds to procure new advocate, funds for filing appeal and application and the evidence of part-payment to fortify the appeal.j.The time taken for the new advocate to peruse the documents provide legal opinion to the Claimant, prepare pleading and the records and eventually making decision to appeal the entire ruling.k.It is in the interests of substantive justice that the Applicant be allowed to prosecute his appeal as the Respondent’s conduct in making payments is inconsistent with its pleaded defence and renders the dismissal of the suit a manifest miscarriage of justice. 4.The application is opposed by the Respondent through the replying affidavit sworn on 6th March 2026 by David T. Naeku, the Respondent’s Company Secretary in which he deposes that throughout the proceedings before the Subordinate Court the Applicant was represented by able counsel from the firm of Kiboi Tuwai & Company Advocates. 5.The Respondent avers that on 13th May 2025, the Subordinate Court reserved delivery of its ruling on the preliminary objection for 10th June 2025, which date was given in the presence of counsel for both the Applicant and the Respondent. 6.The Respondent further avers that it followed up with the Subordinate Court and established that the ruling was uploaded on the e-filing platform on 24th June 2025. 7.The deponent avers that on 25th June 2025, the Respondent’s advocates notified the Respondent of the Subordinate Court’s decision and furnished it with a copy of the ruling. 8.The Respondent avers that the Applicant has not placed before the Court any evidence from his erstwhile advocates explaining their failure to attend court on the date scheduled for delivery of the ruling. 9.The Respondent further contends that the Applicant has not demonstrated any efforts made to obtain a copy of the ruling following its delivery on 10th June 2025. 10.It is also deposed that the Applicant has not produced any evidence of visits to his former advocates’ chambers, correspondence with them or any communication regarding the status of the ruling. 11.The Respondent further avers that the Applicant has not tendered any evidence showing that he attempted to obtain a hard copy of the ruling either from the Court or through the e-filing platform, where the ruling had been freely available since 24th June 2025. 12.The Respondent further argues that even if the Applicant only became aware of the ruling on 15th August 2025, no satisfactory explanation has been offered for his failure to promptly approach the Court thereafter. 13.According to the Respondent, the statutory period for lodging an appeal lapsed on or about 10th July 2025, yet the present application was not filed until 5th February 2026, more than seven months later. 14.It is the Respondent’s averment that since a suit belongs to the litigant and not to the advocate, the Applicant cannot plausibly attribute the failure to file an appeal within time solely to his former advocates. 15.The Respondent therefore contends that the delay of over seven months in bringing the present application is inordinate and has not been satisfactorily explained. 16.The Respondent further avers that the Limitation of Actions Act does not apply to employment disputes and that the limitation period prescribed under Section 90 of the Employment Act is incapable of extension, even on account of part payment. 17.The Respondent maintains that, in the circumstances, the Applicant has failed to demonstrate the existence of an arguable appeal deserving of this Court’s consideration. 18.It is further contended that the Applicant has not demonstrated any prejudice or irreparable loss that he is likely to suffer if the orders sought are not granted. 19.Consequently, the Respondent urges the Court to uphold the principle of finality in litigation and dismiss the instant application with costs. Applicant’s Submissions 20.In his written submissions dated 2nd April 2026 the Applicant submitted under the following heads:i.Whether the Applicant has shown sufficient cause for extension of time to file an appeal out of time.ii.Whether the intended appeal is arguable, specifically regarding:(a)The applicability of Section 23 of the Limitation of Actions Act to override Section 90 of the Employment Act(b)The impropriety of determining a contested factual issue at a preliminary objection stage.iii.Whether the Respondent will suffer any prejudice if the orders sought 21.On the first issue the Applicant submits Rule 18 of the Employment and Labour Relations Court (Procedure) Rules empowers this Court to extend time for filing an appeal. 22.Relying on the decisions in Leo Sila Mutiso v Rose Hellen Wangari Mwangi Civil Application No. Nai 255 of 1997, Paul Wanjohi Mathenge v Duncan Mwangi Githae [2013] eKLR and Richard Nchapi Leiyagu v IEBC & 2 others [2013] eKLR, the Applicant submits that the ruling was delivered on 10th June 2025 in the absence of both the parties and their advocates, and that he only became aware of the dismissal of the matter on 15th August 2025 after personally visiting the chambers of his former advocates to inquire about its status. 23.The Applicant submits that upon learning of the dismissal of the suit, he instructed new counsel, obtained legal advice, applied for the relevant court documents and proceedings, prepared the intended appeal, and thereafter filed the present Application. 24.The Applicant attributes the delay to the lack of notice of the ruling, the failure of his former advocates to keep him informed of its delivery, the process of engaging new counsel, and financial constraints allegedly occasioned by the Respondent’s failure to pay his terminal dues. He maintains that the delay was neither intentional nor in bad faith. 25.The Applicant further submits that although the Respondent acknowledges that the ruling was uploaded onto the e-filing platform on 24th June 2025, there is no evidence that either the Applicant or his former advocates were notified of the same. In support of this position, the cases of Banco Arabe Espanol v Bank of Uganda [1999] 2 EA 22, Philip Chemwolo & Another v Augustine Kubende [1982-1988] KAR 103 and Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another [2014] eKLR were cited. 26.On the issue whether the intended appeal is arguable, the Applicant relying on Section 23 of the Limitation of Actions Act and the decisions in Attorney General & Another v Andrew Maina Githinji & Another [2016] eKLR, M W N (A Minor Suing Through His Father and Next Friend D W N) v Attorney General [2018] eKLR and Bhupinder Singh Dogra v Coast Development Authority [2021] KEHC 7822 (KLR) submitted that the Respondent in its defence admitted through various petty cash vouchers that it made several part-payments towards the Applicant's terminal dues amounting to Kshs. 1,622,229. 27.On this basis, the Applicant submits that, by virtue of Section 23(3) of the Limitation of Actions Act, a fresh cause of action accrued on 9th January 2024, being the date of the last payment. The Applicant therefore maintains that the suit filed in September 2024 was instituted within the prescribed limitation period and that the learned magistrate erred in failing to consider the applicability of Section 23 of the Act. 28.The Applicant further contends that it would have been unreasonable to institute legal proceedings while the Respondent was actively servicing the debt. He submits that the cause of action accrued only when the Respondent ceased making payments in 2024. 29.The Applicant submits that the Respondent's argument that Section 90 of the Employment Act is absolute is misconceived because Section 23 does not extend an expired limitation period but rather creates a fresh accrual of action through acknowledgment or part-payment. 30.It is therefore argued that the intended appeal raises substantial and arguable questions of law with a reasonable prospect of success. The decision in Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR was cited in support of this position. 31.With regard to the issue of the preliminary objection, the Applicant submits that the Respondent's objection was founded upon the factual assertion that the Applicant's employment terminated in August 2020, whereas the Respondent's own letters dated 1st January 2022 and 22nd January 2022 indicated that retirement was to take effect on 1st February 2022. 32.It is therefore the Applicant’s submission that the actual date of termination was therefore a contested question of fact requiring evidentiary interrogation and could not properly be determined through a preliminary objection. 33.The Applicant argues that by resolving the contested issue without hearing evidence, the learned magistrate departed from the principles set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and denied the Applicant a fair hearing as guaranteed under Article 50(1) of the Constitution. 34.Lastly, on the issue whether the Respondent will suffer prejudice if the orders sought are granted, the Applicant submits that the Respondent has demonstrated no specific prejudice beyond the inconvenience of defending an appeal, whereas the Applicant stands to lose a claim exceeding Kshs. 1,622,229 arising from over forty years of service if the Application is declined. 35.The Applicant therefore urges the Court to exercise its discretion in favour of substantive justice and allow the intended appeal to be determined on its merits. The Respondent’s submissions 36.In its submissions dated 10th April 2026, the Respondent framed the issues for determination to be: -i.Whether the court should extend or enlarge the time within which the applicant is to appeal the ruling delivered on 10th June 2025 in Cause No. MCELRC Cause No. E259 of 2024; Joseph C. Psenjen v Kenya Farmers Association Limited.ii.Whether the Memorandum of Appeal should be deemed properly filed upon payment of court fees 37.On the first issue, the Respondent relying on the decisions in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, Koikai & Another v Orinda [2025] KEHC 1297 (KLR) and Republic v Chief of General Staff & Another [2017] eKLR, submitted that the Applicant has failed to provide a satisfactory explanation for the delay in filing the intended appeal. The Respondent avers that the Applicant was represented throughout the proceedings before the subordinate court by the firm of Kiboi Tuwai & Company Advocates and that on 13th May 2025, the court reserved its ruling on the Preliminary Objection for delivery on 10th June 2025 in the presence of counsel for both parties. According to the Respondent, despite the ruling having been delivered on the appointed date, the Applicant has not placed before the Court any evidence demonstrating that either he or his advocates made any effort to follow up on the matter or obtain a copy of the ruling. 38.The Respondent further submits that the period prescribed for filing an appeal lapsed on 10th July 2025, while the present Application was not filed until 5th February 2026, approximately seven months later. According to the Respondent, such delay is plainly inordinate and has not been satisfactorily explained. 39.Regarding the explanation offered for the delay, the Respondent argues that the Applicant and his former advocates were aware of the date fixed for delivery of the ruling since it was taken in open court in the presence of counsel for both parties. The Respondent therefore submits that the issue of service of a ruling notice does not arise. In addition, the Respondent submits that neither the Applicant nor his former advocates have offered any explanation as to why they failed to attend court on the appointed date. 40.The Respondent further contends that even if the Court were to accept that the Applicant only became aware of the ruling on 15th August 2025, no explanation has been offered for the further delay that followed before the filing of the present Application. The Respondent thus argues that no evidence has been tendered demonstrating any attempt to obtain a copy of the ruling, whether from the court registry or through the e-filing platform where it was uploaded and accessible from 24th June 2025. 41.The Respondent further submits that the Applicant's allegation that he lacked funds to instruct counsel is unsupported by any evidence as no material has been placed before the Court to demonstrate the existence of such financial constraints. 42.On the chances of success of the intended appeal, the Respondent submits that the appeal is devoid of merit. The Respondent argues that the Employment Act does not provide for extension of time and that the limitation period stipulated under Section 90 cannot be enlarged through acknowledgment, part-payment or any other mechanism under the Limitation of Actions Act. The Respondent thus submits that the Applicant's reliance on Section 23 of the Limitation of Actions Act is misplaced. 43.On prejudice, the Respondent submits that following the dismissal of the suit by the subordinate court, it treated the matter as concluded and closed its records. The Respondent contends that allowing the Application would subject it to further litigation, additional legal costs and continued uncertainty. 44.The Respondent therefore urges the Court to uphold the principle that litigation must come to an end and decline the invitation to reopen a matter that was lawfully determined by the subordinate court. 45.Lastly, on the issue whether the Memorandum of Appeal should be deemed properly filed upon payment of court fees, the Respondent relying on the decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, submitted that the Supreme Court held that a document filed out of time without leave is a nullity and incapable of being validated retrospectively by a subsequent order extending time. 46.The Respondent submits that where a party intends to seek extension of time, the proper course is to annex a draft memorandum or petition of appeal for the Court's consideration rather than file an appeal out of time and subsequently seek to regularize it. Accordingly, the Respondent urges the Court to decline the prayer seeking to deem the annexed Memorandum of Appeal as duly filed. 47.The Respondent further relies on Geoffrey M. Asanyo & 3 Others v Attorney General [2020] eKLR on the doctrine of stare decisis and submits that this Court is bound by the pronouncements of the Supreme Court on the legal effect of documents filed outside the prescribed timelines without leave. 48.On costs, the Respondent relies on Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR and submits that costs ordinarily follow the event. 49.Consequently, the Respondent maintains that the Applicant has failed to satisfactorily explain the inordinate delay, has not demonstrated an arguable appeal and has failed to establish any basis upon which this Court should exercise its discretion in his favor. The Respondent therefore prays that the Application be dismissed with costs. Analysis and Determination 50.I have considered the Application, the affidavits on record, the rival submissions of the parties, and the authorities cited. The main issue falling for determination is whether the Applicant has satisfied the conditions for the grant of leave to appeal out of time. 51.The principles governing applications for extension of time are now well settled. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR as cited with approval in Endarasha Farmers Cooperative Society Limited v Gichuki (Misc. Application No. E020 OF 2023) the Supreme Court restated the principles to guide courts on applications for extension of time as follows:i.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;iii.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;v.Whether there will be any prejudice suffered by the respondents if the extension is granted;vi.Whether the application has been brought without undue delay; andvii.Whether in certain cases, like election petitions, public interest should be a consideration for extending time." 52.Flowing from the above binding authority, it follows that the Court in exercising its discretion whether or not to extend time for filing an appeal should consider, among other factors, the length of the delay, the reason for the delay, the arguability of the intended appeal and the degree of prejudice likely to be suffered by the Respondent if the orders sought are granted. 53.On the first limb regarding the length of delay, there is no dispute that the ruling sought to be appealed against was delivered on 10th June 2025. Therefore the 30 days statutory period for filing an appeal lapsed on or about 10th July 2025. The present Application was filed on 5th February 2026, approximately seven months after the lapse of the prescribed period. The delay is therefore undoubtedly substantial. 54.The Applicant has attributed the delay to the averment that the ruling was delivered in the absence of the parties and that he only became aware of the dismissal of his claim on 15th August 2025 after personally visiting his former advocates' chambers twice to inquire about the status of the matter. He further avers that he thereafter changed advocates, obtained legal advice, got the necessary documents and evidence and raised funds to facilitate the filing of the intended appeal. 55.The Respondent, on the other hand, contends that the date for delivery of the ruling was taken in open court in the presence of counsel for both parties and that neither the Applicant nor his former advocates have explained why they failed to attend court on the date the matter was scheduled for ruling. The Respondent further argues that no evidence has been produced to demonstrate any efforts made by the Applicant to obtain a copy of the ruling or to follow up the matter with his advocates or the court. 56.While the explanation advanced by the Applicant may not fully account for the entire period of delay, this Court is mindful that the discretion to extend time is intended to facilitate substantive justice where circumstances so warrant. In exercising that discretion, the Court is guided by Article 159(2)(d) of the Constitution, which enjoins courts to administer justice without undue regard to procedural technicalities. 57.The Court is further alive to the fact that mistakes or omissions on the part of counsel should not invariably be visited upon a litigant, particularly where the consequence would be to permanently shut the doors of justice without consideration of the merits of the dispute. 58.On the second limb as to whether the intended appeal raises arguable issues deserving consideration by this court on appeal, it is worth nothing that at this stage, the Court is not required to determine the merits of the appeal but merely to ascertain whether the appeal is frivolous or raises bona fide issues worthy of consideration by the appellate court. 59.From the draft Memorandum of Appeal and the material placed before the Court, the Applicant contends that the learned trial magistrate erred in finding that the cause of action accrued in August 2020 despite correspondence allegedly indicating that the Applicant's retirement took effect on 1st February 2022. The Applicant further contends that the Respondent continued making payments towards his terminal dues between April 2022 and January 2024 and that such payments constituted acknowledgment of indebtedness capable of giving rise to a fresh accrual of the cause of action under Section 23 of the Limitation of Actions Act. 60.Without expressing any concluded view on the merits of those arguments, this Court is satisfied that the issues raised are not frivolous. The applicability of Section 23 of the Limitation of Actions Act in the circumstances of this case, the legal effect of the alleged part-payments and the propriety of determining the date of termination through a preliminary objection are issues that cannot be said to be devoid of substance. 61.Lastly, on the third limb whether the Respondent will suffer prejudice if the orders sought are granted to the Applicant, the Respondent has argued that litigation must come to an end and that it has since closed its records relating to the matter. While that concern is legitimate, no specific prejudice has been demonstrated that cannot be compensated by an award of costs. In my view, taking this case in totality, denying the orders as sought by the Applicant will permanently shut out the Applicant from ventilating his grievance on appeal. 62.In the circumstances, I find that based on the explanation tendered for the delay, the nature of the issues intended to be raised on appeal and the need to facilitate substantive determination of disputes on their merits, this Court is persuaded that this is an appropriate case in which to exercise its discretion in favor of the Applicant. 63.Accordingly, the Application dated 27th January 2026 is hereby allowed in the following terms: -i.The Applicant is granted leave to file and serve the intended appeal out of time within fourteen (14) days from the date of this ruling.ii.The draft Memorandum of Appeal annexed to the Application shall be deemed as duly filed upon payment of the requisite court fees within the said period.iii.Costs of the Application shall abide the outcome of the intended appeal. 64.Orders accordingly. DATED, SIGNED AND DELIVERED ON THIS 8TH DAY OF JUNE 2026M. ONYANGOJUDGE