Abyssinia Iron & Steel Ltd v Kenya Engineering Workers Union [2014] KECA 57 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:  KANTAI, J. A (IN CHAMBERS)

CIVIL  APPLICATION  NO.  61 OF 2014

BETWEEN

ABYSSINIA IRON & STEEL LTD  ..........................................................APPLICANT

AND

KENYA ENGINEERING WORKERS UNION.................................RESPONDENT

(An application for extension of time  to file Notice and Records of Appeal out of time from a judgment and Decree of the High Court of Kenya at Kisumu  (Hon. Lady Justice Hellen Wasilwa )

in

KISUMU HCCC No. 74 OF 2013)

*************************************

RULING

By the Motion on Notice dated 22nd  August, 2014 under Section 3 (1) of the Appellate  Jurisdiction Act Cap 9 of the Laws of Kenya, Rules 4, 41, 42 and 49 of this Courts'  Rules, 2010 the Applicant, Abyssinia  Iron & Steel Limited prays that I grant the applicant  leave to file and serve its Notice of Appeal and Record of Appeal out of time against the judgement  of the Industrial  Court delivered  on 25th February, 2014 by Hellen Wasilwa, J, in Industrial Court Cause No. 74 of 2013 between Kenya Engineering Workers Union (the respondent) and the applicant. There are grounds set out in the Motion and there is also an affidavit of Peter Kaguamba sworn on 22nd August, 2014 with annextures.  Although there was an affidavit in support of urgency sworn on 22nd August, 2014 by Judith Abrahams Guserwa, an advocate, the applicant found it necessary to file another affidavit in support of urgency sworn on 24th  September, 2014 by Prestone Ndombi Wawire, also an advocate, to which there are many annextures. The brief facts are that the respondent filed the said cause at the Industrial Court against the applicant and by the judgement delivered on 25th  February  2014 it was  ordered inter alia that the  applicant recognize the  respondent union.  The next day  26th  February, 2014 the applicant through its General Manager wrote to the Industrial Court requesting copies of proceedings and judgement for purposes of an appeal. This letter was copied to the  respondent. No Notice of Appeal was filed within the stipulated time or at all. The applicant thereafter on 24th  March, 2014 appointed  the firm of J. A. Guserwa & Company Advocates to represent it in the intended appeal. By then time for filing Notice  of Appeal had expired.  It appears that the said law firm was  not made aware that Notice of Appeal had not been filed. They obtained proceedings and  judgement on 15th  August, 2014 and it was then that they realized that an appeal could not be filed because necessary steps had not been taken after judgement of the Industrial Court. The applicant later appointed the firm of Wamae & Allen , Advocates, to act in place of the previous advocates.  This are the advocates who urged the Motion before me.

Mr. Wawire, the learned counsel  for the applicant, in his submissions, requested me to extend time giving as reasons for delay the facts enumerated in this Ruling. Counsel submitted further that the recognition agreement ordered by the Industrial Court would place undue financial and other hardships on the applicant because it would have to recognize people who are not its employees as they are outsourced from another company. This, submitted counsel, would see  an anstronominal rise in the applicants wage bill and industrial action which could cripple its operations. He saw these as arguable points.  Counsel also believed that the respondent would not be prejudiced by a grant of the orders prayed.

The respondents counsel although served with a hearing notice did not attend court when the Motion came for hearing.

It is now settled  that in an application under  Rule 4 of this  Court's Rules, the Court is being called upon to exercise its unfettered discretion.  The matters which are to be considered whether to grant an extension of time are first the length of the delay, the reason  for  that  delay, the chances  of the appeal succeeding  and  lastly  the degree  of prejudice to the respondent if the application is granted.

In Patel V Waweru & 2 Others (2003) KLR 361 at pp. 362 - 3 this Court had the following to say in respect of rule 4 of this Court's Rules:-

“ this  is a matter in which the learned  single  judge was called upon  to  exercise  his unfettered discretion under rule 4 of the rules of this  Court.  All that  the  applicant was required to do was to place sufficient material before the Learned single  judge explaining the reason  for  what  was clearly  an inordinate delay. How does a single judge exercise his discretion? In LEO SILA MUTISO V  ROSE  HELLEN WANGARI MWANGI   - Civil Application No. NAI 251 of 1997 (unreported)this court stated:­

"lt is now settled  that  the decision whether or not to extend  the time  for  appealing is essentially discretionary.  It  is also  well settled  that  in  general the  matters which  this  court takes  into account in  deciding  whether to grant an  extension of time  are first  the length  of the delay.   Secondly, the reason  for the delay, thirdly (possibly)  the  chances  of  the  appeal succeeding  if  the application is granted and  fourthly the  degree  of prejudice to the respondent if the application is granted."

And in Pothiwalla V Kidogo  Basi  Housing  Co-Operative Society Ltd  & 31 Others [2003] KLR 74 the single judge had the following to say on rule 4:-

"I think   it  is  now  settled   that   an  application of  this  nature (under rule  4 of this Court's Rules)  the Court is being asked  to exercise  its  unfettered discretion and  that  for  an  applicant to succeed   he  must   satisfy the Court  that   the   delay  was   not inordinate and  that  the  delay has  been  sufficiently explained. The other  issue to be considered is whether the intended appeal is arguable. Lastly, the applicant has to show that no prejudice would be caused to the respondent if the application to extend time is allowed. This discretion, like   any other judicial discretion must be exercised  judicially."

In Muchugi Kiragu V James Muchugi Kiragu & Another - Civil App. NO. NAI 356 of 1996 the Court had the following to say as regards this Court's discretion under the said Rule:

"Lastly we  would  like  to  observe  that   the discretion granted under rule 4 of the  Rules  of this  Court to extend  the  time  for lodging  an  appeal  is, as is well known,  unfettered and  is only subject to  it  being  granted on  terms as  the Court may  think just. Within  this  context,  this  Court has  on several  occasions, granted extension of time, on the basis that  an intended appeal is an arguable one and  that it would therefore, be  wrong  to shut an  applicant out  of  Court and  deny  him  the  right   of appeal unless  it  can  fairly  be  said  that  his action  was  in the circumstances, inexcusable and that his opponent was prejudiced by it.

I have considered the application, the documents in support and the submissions by learned counsel for the applicant.  I am satisfied that the applicant is entitled to my exercise of discretion in its favour.  The applicant applied for proceedings the day after the judgement of the Industrial Court.Thus the applicant was vigilant in its efforts to pursue an appeal and failure to file a Notice of Appeal appears to me to be an excusable mistake on the part of the applicant. The draft Memorandum of Appeal appears to raise arguable points. In the premises, I grant the  application as prayed and order that the applicant  files  and  serves a  Notice  of Appeal  within  seven  (7) days of today and thereafter file and serve Record of Appeal within fourteen (14) days.  Costs of the Motion shall abide the hearing and determination of the intended appeal.

Dated and delivered at Kisumu this 8th day of November, 2014

S. ole Kantai

…………………….…….

JUDGE OF APPEAL

I certify that this is a

true copy of the original

DEPUTY REGISTRAR