[2025] KEELRC 987 (KLR)

Obuya v Busia Sugar Industry (Miscellaneous Application E016 of 2024) [2025] KEELRC 987 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEELRC 987 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Bungoma

Miscellaneous Application E016 of 2024

DN Nderitu, J

March 27, 2025

Between

Peter Odhiambo Obuya

Applicant

and

Busia Sugar Industry

Respondent

Ruling

I. Introduction 1. In a notice of motion dated 25th November, 2024(the application), the applicant is seeking orders that –i.Spent.ii.The applicant be granted leave to appeal out of time, the judgment of the Honourable E. Nyaloti, Chief Magistrate in Busia CM ELRC Case No. 4 of 2020 delivered on the 31. 10. 2023. iii.The costs of this application be provided for.

2. The application is expressed to be founded on Section 79G of the Civil Procedure Act, Order 50 Rule 6, & Order 51 Rule 1 of the Civil Procedure Rules. It is based on the grounds on the face of it.

3. The application is supported with the affidavit sworn by the applicant on 25th November, 2024 with several annexures thereto.

4. The application is unopposed.

5. On 19th December, 2024 when the matter came up in court for directions, the court directed that the application be canvassed by way of written submissions.

6. The applicant’s counsel, Ms. Akinyi, filed her written submissions on 17th January, 2025.

II. Evidence 7. In the supporting affidavit by the claimant, it is deponed that the trial court in Busia CM ELRC No. 4 of 2020 delivered a judgment (POO-1) on 31st October, 2023 against the applicant, who despite having been informed of the outcome by his counsel, was unable to appeal due to financial incapacity to instruct his counsel.

8. It is deponed that the applicant’s financial situation did not improve until the time of filing the present application but, unfortunately, the statutory period for filing an appeal had lapsed.

9. The applicant seeks leave of the court to file the appeal out of time arguing that the delay in filing the appeal on time is excusable.

10. It is deponed that the intended appeal as expressed in notice of appeal annexed to the application (POO-2) has a good chance of success and the applicant ought not to be denied access to justice.

III. Submissions 20. Counsel for the applicant identified the single issue for determination in this application to be – Whether the instant application is merited.

21. It is submitted that under Section 79G of the Civil Procedure Act and the decisions in Nicholas Kiptoo Korir Salat v IEBC and 7 others (2014) eKLR and Paul Musili Wambua v Attorney General & 2 others (2015) eKLR a judge has unfettered discretion on whether to extend the time for filing an appeal or not.

22. It is submitted that flowing from the aforesaid decisions, the court in granting leave to file an appeal out of time has to consider the length of the delay; the reason for the delay; the chances of the appeal succeeding if the leave is granted; and, the degree of prejudice that the respondent may suffer if the application is allowed.

23. It is submitted that the application has been brought without inordinate delay as the applicant’s financial constraints prevented him from filing his appeal within the allowed time. Relying on Article 48 of the Constitution, the applicant submits that his right to access justice should not be impeded by the delay in filing his appeal, which is regrettable.

24. It is submitted that the applicant utilized the one year to organize for finances to enable him instruct an advocate to file an appeal. The court is urged to be persuaded by the reasoning in Jaber Mohsen Ali & Another v Priscillah Boit (2014) eKLR and find that the delay was reasonable in the circumstances.

25. It is further submitted that the applicant’s intended appeal has a high chance of success as the trial magistrate despite finding that the applicant’s termination was unlawful, went ahead to find that the applicant failed to prove his claim on a balance of probabilities. The court is urged to be persuaded by the reasoning in Joseph Gitahi Gachau & another v Pioneer Holding (Africa) Limited & 2 others [2015] eKLR and find that one arguable issue suffices to find that an intended appeal is arguable.

26. It is submitted that the respondent will suffer no prejudice if the application is allowed and, in any event, it may be awarded costs.

IV. Analysis & Determination 27. The court has carefully read and considered the application, the affidavit in support, and the written submissions by the applicant’s counsel, alongside all the cited authorities. The following issue commends itself to the court for determination – Whether the applicant is deserving of an extension of time to lodge an appeal out of time as prayed?

V. The Threshold 28. The application is based on Section 79G of the Civil Procedure Act which provides that –Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time (Emphasis added)

29. Rules 12 & 18 of Employment and Labour Relations Court (Procedure) Rules, 2024 (The Rules) Section 79G of the Civil Procedure Rules providing that –“12 (1)Where a written law provides for an appeal to the Court, an appellant shall file a memorandum of appeal with the Court within the time specified under that written law. (2) Where an appeal is from a magistrate’s court or where no period of appeal is specified in the written law referred to in sub-rule (1), the appeal shall be filed within thirty days from the date the decision is delivered.18. The Court may, if circumstances justify, extend the time prescribed for the filing of an appeal or any document relating to an appeal." (Emphasis added)

30. The Supreme Court in Nicholas Kiptoo Korir Salat v IEBC & 7 others (2014) eKLR laid down the underlying principles that a Court should consider in the exercise of the discretion to extend the time for filing an appeal out of time –1. 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;2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;4. Whether there is a reasonable reason for the delay.5. The delay should be explained to the satisfaction of the Court; Whether there will be any prejudice suffered by the respondents if the extension is granted;6. Whether the application has been brought without undue delay; and7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.

31. The applicant argues that his financial misfortunes prevented him from instructing an advocate to file an appeal. He argued that he has brought the application after one year after sorting out his finances and seeks to be allowed to file his appeal in the interests of access to justice.

32. The respondent did not file a response to the application, despite proof of service as per the affidavits of service in the court record.

33. The court may not the applicant’s alleged financial woes. The judgment in the lower trial court was delivered on 31st October, 2023 and the present application was filed in court on 28th November, 2024. The applicant had up to 30th November, 2023 to file an appeal without leave after the judgment in the lower trial court was delivered, but the present application was lodged approximately 11 months 29 days after the judgment. The applicant has explained that the delay was occasioned by lack of finances. The court holds that the delay is excusable and that the same has been reasonably explained.

34. The court has perused the draft memorandum of appeal and finds that the applicant raises arguable issues and as such the applicant has discharged the burden that the intended appeal should be arguable.

35. As to the prejudice that the respondent may suffer if leave is granted to the applicant to file an appeal out of time, the respondent did not respond to the application. The respondent will certainly have an opportunity to respond to the appeal once filed.

VI. Order 36. The court orders that –i.The application dated 25th November, 2024 is merited and is hereby allowed.ii.The applicant shall file the intended appeal within 60 days of this ruling and thereafter take a mention date for directions on the hearing and disposal of the appeal.iii.There is no order as to costs.

DELIVERED VIRTUALLY, DATED, AND SIGNED AT BUNGOMA THIS 27TH DAY OF MARCH, 2025. ....................................DAVID NDERITUJUDGE