https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1882

Kenya Chemical Workers Union v Alliance Concrete Ltd (Employment and Labour Relations Cause E195 of 2025) [2026] KEELRC 1882 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1882 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E195 of 2025 HS Wasilwa, J July 2, 2026 Between Kenya Chemical Workers Union Claimant and Alliance Concrete Limited Respondent Ruling 1.The Respondent/ Applicant filed a Notice of Motion application dated 17th November 2025 seeking orders: -1.That this Honourable Court be pleased, in the interest of substantive justice and pursuant to its wide discretionary powers under Article 159 of the Constitution and Section 3A of the Civil Procedure Act, to enlarge and/or extend the time within which the Respondent/Applicant is required to comply with the Pre-Trial Conference directions issued on 2nd October 2025, the lapse of time having occurred due to excusable and non-deliberate circumstances fully explained in the Supporting Affidavit.2.That this Honourable Court be pleased to grant the Respondent/Applicant leave to file and serve all outstanding pleadings and documents out of time, it being in the interest of justice that the matter be determined on its merits rather than on procedural technicalities, and further considering that no prejudice whatsoever shall be occasioned to the Claimant/Respondent.3.That upon grant of leave, the documents annexed hereto and dated 30th October 2025, together with the pleadings filed contemporaneously with this Application, be deemed as duly filed, properly on record, and fully compliant with the Court’s directions, the delay notwithstanding.4.That to ensure fairness and equality of arms, the Claimant/Respondent be granted corresponding liberty, if necessary, to file any supplementary pleadings or documents in response, within such timelines as the Court shall deem just.5.That this Honourable Court be pleased to issue such further Orders, Directions, or Reliefs as may be necessary for the just, proportionate, and expeditious disposal of this suit, in keeping with the overriding objective under Section 3 of the Employment and Labour Relations Court Act.6.That the costs of this Application be provided for in the cause, this being an interlocutory and procedural application. Respondent/Applicant’s Case 2.The Applicant avers that on 2nd October 2025, this Court delivered a ruling, in which the Respondent had fully participated, dismissing the Claimant’s application with costs to the Respondent. Thereafter, the Court granted the parties time within which to file their respective documents in preparation for the Pre-Trial Conference. 3.The Applicant further avers that on 7th October 2025, barely five days after the ruling, counsel having conduct of the matter on behalf of the Respondent fell ill and was thereafter in and out of hospital undergoing treatment, medical review and recovery. As a result of the illness and repeated hospitalization, counsel was placed on compassionate leave and was consequently unable to attend to the matter or comply with the timelines issued by the Court for filing documents. 4.The Applicant asserts that on the date scheduled for mention to confirm compliance with the Pre-Trial Conference directions, counsel attempted to explain her medical condition and seek an extension of time, but the call was disconnected before she could be fully heard. The Court, appreciating the circumstances, directed counsel to file a formal application for extension of time since the matter had already been allocated for formal proof owing to non-compliance. 5.The Applicant contends that the failure to comply with the Court’s directions was neither deliberate, intentional nor negligent, but was wholly occasioned by counsel’s unforeseen medical condition. 6.It avers that the mistake or misfortune of counsel ought not to be visited upon an innocent litigant, particularly where no prejudice has been demonstrated. 7.The Applicant further states that it has since prepared its Reply to the Claim, List of Documents and Witness Statement, all of which it intends to rely upon during the hearing. He therefore seeks that the said documents be admitted on record to enable the dispute to be heard and determined on its merits. 8.The Applicant avers that the application was filed without inordinate delay and immediately upon counsel recovering sufficiently to attend to the matter and following the Court’s leave to file the application. 9.It is the Applicant’s case that its defence raises serious triable issues which deserve ventilation at a full hearing and that denial of the orders sought would unjustly deprive the Respondent of its right to be heard and occasion substantial prejudice. 10.The Applicant avers the Claimant will suffer no prejudice incapable of being cured by appropriate directions of the Court, whereas the it stands to suffer extreme prejudice if denied an opportunity to defend the claim. Claimant/Respondent’s Case 11.In opposition to the application, the Claimant/Respondent filed a replying affidavit dated 17th December 2025, sworn by Peter Ouko, its National General Secretary. 12.It is the Respondent’s case that the explanation advanced by the Applicant for the delay in filing its documents is founded entirely on the alleged sudden illness of its advocate, Ms. Cynthia Kwamboka, from 7th October 2025. 13.The Respondent states that while it does not wish to appear unsympathetic to health challenges, the medical note annexed in support of the application is inadequate and incapable of justifying the delay. 14.The Respondent avers that the medical note from Davma Health Services dated 13th November 2025 merely indicates that counsel was seen on various dates between 7th October 2025 and 10th November 2025. It does not disclose the nature or severity of the illness, does not contain a professional opinion that counsel was medically incapacitated and unable to attend to her professional duties throughout the period in question, and does not certify her fitness to resume work despite having been issued in mid-November 2025. 15.The Respondent further states that the law firm of Kwamboka Marie & Associates comprises more than one advocate and no explanation has been offered as to why another partner or associate could not have attended to the matter or sought an extension of time on behalf of the Applicant. It contends that the obligation to comply with court directions rests upon the litigant and cannot be attributed solely to a particular advocate. 16.It avers that the chronology of events demonstrates inordinate and unexplained delay. The Court issued directions on 2nd October 2025, whereas, the alleged illness commenced on 7th October 2025, and despite the Court directing that a formal application be filed, the Applicant only filed the present application on 17th November 2025. According to the Respondent, the delay of over one month from the mention date remains unexplained. 17.The Respondent contends that although the Applicant attributes the delay to a dropped call during the virtual mention, it was incumbent upon either counsel or the Applicant to promptly file a letter or formal application explaining the technical hitch and seeking the requisite extension, which was not done. 18.It is the Respondent’s case that it will suffer prejudice if the orders sought are granted; as, grievants, Michael Kipyegon Terer and Willy Mureithi Waitiri, were dismissed in October and November 2024 respectively and have remained without employment while awaiting the determination of the dispute. 19.It contends that granting the application would reward the Applicant’s default and further delay the hearing and determination of the matter, thereby occasioning continued financial and emotional hardship to the grievants. 20.The Respondent further avers that it has prepared its case on the basis of the timelines issued by the Court and the matter having been fixed for formal proof hearing on 11th May 2026. 21.It asserts that allowing the Applicant to introduce its defence at this stage would compel the Respondent to revisit its litigation strategy, consider filing further documents and prepare to meet a defence that had become procedurally barred, thereby causing both procedural and substantive prejudice. 22.The Respondent contends that the overriding objective under Section 3 of the Employment and Labour Relations Court Act is to facilitate the just, expeditious, proportionate and affordable resolution of disputes. It argues that granting the application would undermine that objective by rewarding delay and lack of diligence, defeating the purpose of court-imposed timelines, prejudicing a compliant party and further delaying resolution of a dispute involving dismissed employees. 23.The Respondent further asserts that while Article 50 of the Constitution guarantees the right to be heard, that right is not absolute and must be balanced against the right to a fair and expeditious hearing. It contends that a party who fails to diligently prosecute its case without a satisfactory explanation may forfeit the privilege of audience before the Court. 24.It is therefore the Respondent’s case that once a matter has been set down for formal proof due to a party’s default, the defaulting party must demonstrate a compelling reason for the delay and show that its defence raises issues that outweigh the prejudice likely to be suffered by the opposing party. The Respondent contends that the Applicant has failed to satisfy either requirement and urges the Court to find the application devoid of merit, an abuse of the court process and dismiss it with costs. Respondent/Applicant’s Submissions 25.The Respondent submitted on six issues: whether the Respondent has established sufficient cause to warrant extension of time; whether the delay is inordinate and inexcusable; whether the Respondent has prima facie arguable defence raising triable issues; whether the Claimant will suffer prejudice incapable of compensation by costs; whether the interests of justice and the right to a fair hearing favour the grant of the orders sought; and who should bear the costs of the application. 26.On the first issue, the Applicant submitted that the delay in complying with the Court’s directions arose from circumstances wholly beyond counsel’s control due to sudden illness, hospitalization and a subsequent period of compassionate leave during recovery. These were unforeseen and unavoidable events which rendered counsel medically incapacitated during the period within which compliance was required. 27.The Applicant further submitted that the chronology of events demonstrates that the delay was neither inordinate nor unexplained. It was argued that following the Court’s directions of 2nd October 2025, counsel fell ill on or about 7th October 2025 and remained under medical treatment throughout October and into early November 2025, followed by a period of compassionate leave. 28.The Applicant submitted that immediately upon counsel regaining capacity and resuming work, the present application was filed on 17th November 2025. According to the Applicant, the delay was therefore fully accounted for by a continuous period of incapacity followed by prompt action upon recovery. 29.Relying on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Applicant submitted that extension of time is an equitable remedy granted at the discretion of the Court where an applicant demonstrates a reasonable explanation for the delay, good faith and diligence. It was argued that the Applicant met that threshold by providing a credible explanation for the delay and by approaching the Court without undue delay upon counsel’s recovery. 30.The Applicant further submitted that in County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, the Supreme Court reaffirmed that procedural rules are handmaidens of justice and should not be applied in a manner that defeats substantive rights. It was argued that denying the Applicant an opportunity to be heard on account of a medically occasioned delay would offend those principles and undermine the interests of justice. 31.On whether the delay was inordinate, the Applicant submitted that the delay was neither excessive nor inexcusable, having been directly occasioned by counsel’s illness, hospitalization and recovery period. Reliance was placed on Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] eKLR, where the Court of Appeal held that the reason for the delay is a primary consideration in applications for extension of time. 32.The Applicant further cited Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Company Limited [2015] eKLR and submitted that once a delay is satisfactorily explained, it ceases to be inordinate. Therefore, the delay herein was reasonable, excusable and should not disentitle the Applicant from the equitable relief sought. 33.On the third issue, the Applicant submitted that it has an arguable defence raising substantial and bona fide triable issues; the annexed Response to the Claim, witness statements and supporting documents disclose issues relating to the lawfulness of the termination, compliance with Sections 41, 44 and 45 of the Employment Act and adherence to due disciplinary process. The Applicant submitted that these are matters deserving determination on merit. 34.In support of its position, reliance was placed on Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, where the Court held that a matter ought to proceed to hearing where a plausible defence raising triable issues is disclosed. The Applicant also relied on CFC Stanbic Limited v John Maina Githaiga & another [2013] eKLR and argued that the right to be heard ought not to be curtailed where a party demonstrates an arguable case. It maintained that its defence raises serious issues warranting ventilation at a full hearing. 35.On prejudice, the Applicant submitted that the Respondent will suffer no prejudice incapable of compensation by an award of costs if the application is allowed. It was argued that the matter has not been heard on its merits and the Respondent will retain a full opportunity to respond to the Applicant’s pleadings and prosecute its case. 36.Citing Ivita v Kyumbu [1984] KLR 441, the Applicant submitted that where justice can still be done and no prejudice is demonstrated, the Court ought to permit the matter to proceed. Reliance was also placed on Utalii Transport Company Limited & 3 others v Nic Bank Limited & another [2014] eKLR, where it was held that prejudice must be real and not speculative. The Applicant argued that the Respondent had failed to demonstrate any tangible or irreparable prejudice that would arise from the grant of the orders sought. 37.Conversely, the Applicant submitted that it stands to suffer grave prejudice if denied an opportunity to present its defence, as it would be shut out from the seat of justice without having its case heard. It was therefore argued that the balance of convenience and the interests of justice favour the grant of the application. 38.On the right to be heard, the Applicant submitted that Article 50 of the Constitution guarantees every party the fundamental right to a fair hearing and that courts have consistently held that a litigant should not be denied an opportunity to be heard except in the clearest of circumstances. Reliance was placed on Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commmission & 2 others [2013] eKLR, where the Court emphasized that the right to a hearing is so fundamental that it should not be lightly taken away and that parties ought to be afforded every reasonable opportunity to present their case unless there is clear abuse of process. 39.The Applicant further relied on Philip Chemwolo & Another v Augustine Kubende [1982–88] KAR 103, wherein the Court held that mistakes, inadvertence and excusable lapses should not be visited upon an innocent litigant where justice can still be done. The Applicant submitted that the delay was occasioned by counsel’s illness, that it acted in good faith and had provided a credible explanation for the default. Claimant/Respondent’s Submissions 40.On the legal principles governing extension on time, the Respondent submitted that Court’s discretion to extend time is judicial, not charitable. This was settled in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, wherein the Supreme Court held that an applicant must demonstrate a reasonable and credible explanation for the delay, due diligence, good faith, that the delay is not inordinate, and that the opponent will not suffer prejudice that cannot be compensated by costs. 41.On the sufficiency and credibility of the explanation for delay, the Respondent submitted that the medical note from Davma Health Services dated 13th November 2025 merely states that counsel was seen on various dates between 7th October and 10th November 2025 without disclosing the diagnosis, nature or severity of the illness, whether counsel was hospitalized or incapacitated, or whether she was unable to communicate with her client or colleagues. 42.The Respondent further submitted that the document does not certify counsel’s fitness to resume work. The document is a mere attendance note, not a medical certificate of incapacity, and it cannot support a claim of total inability to attend to professional duties for over five weeks. 43.The Respondent submitted that the Response to Claim and the Witness Statement of Florence Munyambu are both dated 30th October 2025, which falls within the period during which counsel alleges she was incapacitated. It was argued that if counsel was unable to work between 7th October and 10th November 2025, there is no explanation as to how detailed pleadings and witness statements were prepared, reviewed and executed during that period. 44.It is the Respondent’s submission that this contradiction undermines the Applicant’s explanation and suggests exaggeration or misrepresentation of the alleged illness, thereby disentitling the Applicant from the equitable relief sought. 45.On due diligence and whether the delay was attributable to advocate negligence, the Respondent submitted that the Applicant failed to demonstrate any diligence. It was argued that the law firm on record is Kwamboka Marie & Associates and it is not a sole proprietorship, yet no explanation was offered as to why another advocate, partner or associate could not attend to the matter, seek directions or apply for extension of time. 46.It submitted that the illness of one advocate does not paralyse an entire law firm, therefore, the failure to utilize available resources amounted to negligence rather than an unavoidable circumstance. 47.On whether the delay was inordinate and unexplained, the Respondent submitted that the Court issued directions on 2nd October 2025 and the present application was not filed until 17th November 2025. 48.It was argued that even accepting the alleged illness between 7th October and 10th November 2025, counsel had resumed work by 13th November 2025 when the medical note was issued, yet the application was only filed four days later without explanation. 49.The Respondent further submitted that no letter was written to the Court and no effort was made to seek an informal extension after the alleged technical hitch during the virtual mention. Citing Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] eKLR, the Respondent submitted that while the length of delay may not be decisive, an unconvincing explanation defeats an application for extension of time. 50.On whether the Applicant has demonstrated an arguable defence, the Respondent submitted that the annexed Response to Claim does not disclose a defence deserving the Court’s discretion. It was argued that although the Applicant alleges gross misconduct and fuel siphoning, significant procedural deficiencies remain. 51.The Respondent submitted that there is no evidence that the 1st grievant was accorded a hearing as required under Section 41 of the Employment Act and that dismissal cannot be justified merely because an employee failed to attend a hearing unless wilful refusal is proved. 52.It further submitted that the Conciliator’s Certificate confirms only that there was an unresolved trade dispute and does not constitute a finding of misconduct. While acknowledging the principle in Patel v E.A. Cargo Handling Services Ltd [1974] EA 75 that a plausible defence should ordinarily be heard, the Respondent argued that the Applicant has not demonstrated a sufficiently arguable defence and, in any event, the existence of a defence cannot cure inexcusable delay. 53.On prejudice, the Respondent submitted that both grievants were dismissed in October and November 2024 and have remained unemployed for over a year. It was argued that the matter is already fixed for formal proof hearing on 11th May 2026 and that granting the application would vacate that hearing date, revert the matter to pre-trial processes and inevitably delay the resolution of the dispute. Such delay would occasion continued financial and emotional hardship to the grievants. 54.It is the Respondent’s submission that it has prepared its case in accordance with the Court’s timelines and allowing the Applicant to revive its defence would require additional preparation, possible further pleadings and increased costs. According to the Respondent, the prejudice is real and not speculative, as contemplated in Utalii Transport Company Limited & 3 others v Nic Bank Limited & another [2014]eKLR. 55.On the overriding objective and the interests of justice, the Respondent submitted that Section 3 of the Employment and Labour Relations Court Act requires the Court to facilitate the just, expeditious, proportionate and affordable resolution of disputes. It was argued that granting the application would reward indolence and lack of diligence, undermine court-imposed timelines, increase costs and further delay the determination of a dispute that is already more than one year old. 56.The Respondent submitted that the Applicant has shown little regard for the Court’s directions and should not benefit from its own default. 57.The Respondent further submitted that the Applicant’s reliance on the right to be heard is misplaced. While acknowledging the importance of Article 50 of the Constitution, the Respondent argued that the right to a fair hearing must be balanced against the equally important principle of expeditious disposal of disputes. It was submitted that any prejudice alleged by the Applicant is self-induced and that a litigant should not benefit from its advocate’s negligence where diligence has not been demonstrated. 58.It is the Respondent’s submission that the application is an afterthought disguised as a plea founded on illness but unsupported by credible evidence. Relying on Ivita v Kyumbu [1984] KLR 441, the Respondent urged the Court to find that the Applicant has failed to satisfy the threshold for extension of time and to dismiss the application with costs. 59.I have examined all the averments and submissions of the parties herein. The prayer by the applicant herein is that he be allowed to file his documents and participate in the proceedings by defending his client. He has in his affidavit explained challenges he faced in not being present during the pretrial direction and which prompted this court to order a formal proof hearing. 60.This is a court of justice and a court of law. In considering the sentiments of the parties, it is true that a party must be allowed his day in court. In the interest of justice, I exercise my discretion and allow this application and allow the applicant to be allowed to present his evidence so the cause proceeds inter parties. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JULY, 2026.HELLEN WASILWAJUDGE