https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1419

Kahindi & another (Suing on Behalf of Themselves & 12 others) v Lean Energy Solutions Ltd (Miscellaneous Application E017 of 2026) [2026] KEELRC 1419 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1419 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Miscellaneous Application E017 of 2026 Nzioki wa Makau, J May 21, 2026 Between Zacharia Macharia Kahindi 1st Applicant Raphael Gitari Mwangi 2nd Applicant Suing on Behalf of Themselves & 12 others and Lean Energy Solutions Ltd Respondent Judgment 1.The Applicants moved this Court by way of the application dated 10th April 2026 seeking leave to file an appeal out of time against the judgment of Hon. Benson Ireri (CM) delivered on 12th February 2026. They further seek an order that the draft Memorandum of Appeal annexed to the application be deemed as duly filed upon grant of leave, together with costs of the application. 2.The application is premised on the grounds set out on its face and is supported by the affidavit of Ms. Leah Mwangi, Learned Counsel for the Applicants. Counsel depones that although judgment was delivered on 12th February 2026, the Learned Trial Magistrate only read a brief summary thereof. She avers that when a clerk from their firm subsequently visited the court registry to obtain a copy of the full judgment, he was informed that the same would be uploaded onto the Court Tracking System (CTS). According to counsel, the judgment was eventually uploaded on 14th March 2026, by which time the statutory period of thirty days for lodging an appeal had already lapsed. She therefore contends that the delay was occasioned by circumstances beyond the Applicants’ control and urges the Court to exercise its discretion in their favour. Counsel further maintains that the application was filed without undue delay upon receipt of the judgment, that the intended appeal raises substantial and arguable issues, and that the Respondent will suffer no prejudice incapable of compensation by way of costs if the orders sought are granted. 3.The application is opposed through a replying affidavit sworn by Ms. Octavia Mambori, learned counsel for the Respondent. She contends that the application is fatally defective for having been brought under the Civil Procedure Rules instead of Rule 18 of the Employment and Labour Relations Court (Procedure) Rules. She further depones that the Applicants have been guilty of inordinate and unexplained delay. According to the Respondent, the Applicants were fully aware from 12th February 2026 that their suit had been dismissed, yet they took no meaningful steps until 17th March 2026 when they eventually requested for proceedings and a certified copy of the judgment. 4.The Respondent further argues that notwithstanding the fact that the judgment was uploaded onto the CTS on 14th March 2026, nothing prevented the Applicants from taking the necessary steps towards lodging their appeal. It is contended that the Applicants were indolent and that, had they genuinely intended to pursue an appeal, they ought to have immediately written to the Court requesting for a copy of the judgment and made the requisite payment in compliance with Rule 11(1) of the Employment and Labour Relations Court (Procedure) Rules. 5.Additionally, the Respondent avers that the filing of the present application twenty-seven days after the judgment had been uploaded onto the CTS is indicative of lack of diligence and undermines the principle of finality in litigation. On that basis, the Court is urged to dismiss the application with costs. 6.On 27th April 2026, the Court directed that the application be canvassed by way of written submissions. The Applicants were granted seven days within which to file and serve their submissions, while the Respondent was accorded a corresponding period of seven days thereafter to respond. However, only the Respondent complied with those directions. Respondent’s Submissions 7.The Respondent submits that the Applicants have not met the threshold for extension of time. It maintains that extension of time is not a right but an equitable remedy granted at the discretion of the court. In support of that proposition, reliance is placed on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, where the Court stated that extension of time is a discretionary remedy available only to a deserving party who has laid a sufficient basis to the satisfaction of the Court. The Court further emphasized that the delay must be reasonably and satisfactorily explained, the application must be brought without undue delay, and the Court must consider whether any prejudice would be occasioned to the respondent if the orders sought are granted. 8.Applying those principles to the present case, the Respondent submits that the Applicants were indolent, having taken no discernible steps to obtaining a copy of the judgment until 17th March 2026. Particularly it emphasizes their failure to request for a copy of the judgment in writing as required under Rule 11(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024. Moreover, the Respondent highlights the unexplained delay of 27 days between the date when the judgment was uploaded onto the CTS and the filing of the present application. In support of this argument, the Respondent relies on Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, where the court stated that although the law does not prescribe the length of delay, any delay must be satisfactorily explained and that a plausible explanation is the key that unlocks the court’s discretion. 9.With regard to the Applicants’ assertion that several visits were made to the court registry in pursuit of the judgment, the Respondent submits that no evidence has been tendered in support of that claim. The Respondent further contends that the intended appeal has not been demonstrated to be arguable since the Applicants failed to annex a copy of the impugned judgment to enable the Court assess the merits of the intended appeal. 10.The Respondent further submits that the Applicants cannot invoke the overriding objective of the Court to sanitize unexplained delay, indolence, and non-compliance with procedural timelines. Reliance is once again placed on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, where Kiage JA cautioned that courts should not aid parties who demonstrate scant regard for rules and timelines, emphasizing that procedural rules exist to ensure fairness, certainty, and orderly adjudication of disputes. In conclusion, the Respondent urges the Court to find that the Applicants have failed to lay a sufficient basis for the exercise of discretion in their favour and accordingly prays that the application be dismissed with costs. Disposition 11.The application before me is not for grant. Other than moving this Court under the wrong procedure – Civil Procedure Rules do not apply in this Court except for matters execution, the Applicants have failed to surmount the legal challenges in obtaining the relief sought. 12.The Applicants before me were extremely indolent, having taken no discernible steps towards obtaining a copy of the judgment. They waited until 17th March 2026 to do so. They failed to request for a copy of the judgment in writing as required under Rule 11(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024 neither did they make any application for the same once they realised the same was not on CTS. In any event the CTS is an online system and does not take away the decisions made which must be reposed in a file somewhere. There is also the unexplained delay of 27 days between the date when the judgment was uploaded onto the CTS platform and the filing of the present application. 13.In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (supra), Kiage JA stated that courts should not aid parties who demonstrate scant regard for rules and timelines, emphasizing that procedural rules exist to ensure fairness, certainty, and orderly adjudication of disputes. From my reading of this case, the Applicants were clearly dithering and the Court cannot exercise its discretion in their favour. Application dismissed with costs to the Respondent.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 21ST DAY OF MAY 2026NZIOKI WA MAKAU, MCIArb.JUDGE