Ngaira & 126 others v Sendwave Limited (ZEPZ) [2025] KECA 968 (KLR)

Ngaira & 126 others v Sendwave Limited (ZEPZ) (Civil Appeal (Application) E365 of 2024) [2025] KECA 968 (KLR) (23 May 2025) (Ruling)

Neutral citation: [2025] KECA 968 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal (Application) E365 of 2024

SG Kairu, JA

May 23, 2025

Between

Abraham Leon Ngaira

1st Applicant

Irene Dimmo

2nd Applicant

Belinda Olisa Masheti

3rd Applicant

Dorah Kichunju

4th Applicant

Betha Musazi

5th Applicant

Rebeca Karanja

6th Applicant

Daisy Achieng Mboya

7th Applicant

Anne Oluoch

8th Applicant

Caroline Moraa Mauti George

9th Applicant

Irene Zale

10th Applicant

Betty Wairimu Maina

11th Applicant

Trizer Taaka

12th Applicant

Maureen Obure

13th Applicant

Fridah Mugambi

14th Applicant

Fiona Muthoni

15th Applicant

Gerald Were Diffu

16th Applicant

Stephen Ochieng Odhiambo

17th Applicant

Deborah Mutheu Mutunga

18th Applicant

Esther Githae

19th Applicant

Racheal Oluoch

20th Applicant

Bianca Nyambura

21st Applicant

Pheney Mwimwa

22nd Applicant

Michelle Owili

23rd Applicant

Stellah Wanjohi

24th Applicant

Donella Langat

25th Applicant

Joyce Wambui Njubi

26th Applicant

David Chweya

27th Applicant

Moreen Chilo

28th Applicant

Brenda Anyango Midamba

29th Applicant

Purity Ngetich

30th Applicant

Josephine Omondi

31st Applicant

Ian Mwangi Duncan

32nd Applicant

Faith Chelangat

33rd Applicant

Esther Gathoni Maina

34th Applicant

Bancy Nyakio Njiru

35th Applicant

Yvonne Ochieng

36th Applicant

Eva Makena Mutea

37th Applicant

Joyce Musau

38th Applicant

Selestine Akelo

39th Applicant

Josephine Flora Atieno Okeno

40th Applicant

Lucy Wambui

41st Applicant

Felicity Nduta Kamwanga

42nd Applicant

Winnie Wanjiku Wachira

43rd Applicant

Jannat Juma

44th Applicant

Joseck Momanyi

45th Applicant

Caren Shanice Gumba

46th Applicant

Rhoda Mukolwe

47th Applicant

Stephen Kariuki

48th Applicant

Coreen Namwanzo Gonzo

49th Applicant

Geraldine Koki

50th Applicant

Grace Wariara Muhoya

51st Applicant

Kebaso Maragia

52nd Applicant

Irene Ekirapa

53rd Applicant

Kelvin Muthoka

54th Applicant

Ishmael Mwai

55th Applicant

Francis Mbithi

56th Applicant

Irene Awuor Otula

57th Applicant

Sharon Aluvisa

58th Applicant

Caroline Wambui Njoroge

59th Applicant

Joyce Mbugua

60th Applicant

David Kuria Mwangi

61st Applicant

Flaviane Muturi

62nd Applicant

Jemimah Muroki

63rd Applicant

Johnstone Muthee

64th Applicant

James Obingo

65th Applicant

Caroline Nyokabi Kariuki

66th Applicant

Mercy Alusa

67th Applicant

Janeffa Maremba Mwakale

68th Applicant

Damaris Oluoch

69th Applicant

Hellen Malago

70th Applicant

Everlyne Akoth Otieno

71st Applicant

Saida Yusuf

72nd Applicant

Lucy Mobagi

73rd Applicant

Leonida Ngetich

74th Applicant

Joseph Gichuhi

75th Applicant

Sally Koross

76th Applicant

Naseem Mukanda

77th Applicant

Peris Luta

78th Applicant

Gladys Cherotich Ronoh

79th Applicant

Diana Ireri

80th Applicant

Bilha Muthoni Mbaire

81st Applicant

Andre Etabale Wetindi

82nd Applicant

Moses Kibet

83rd Applicant

Elizabeth Odhiambo

84th Applicant

Jerry Otieno

85th Applicant

Ann Muthengi

86th Applicant

Diana Kerubo Orwaru

87th Applicant

Mercy Oloo

88th Applicant

Ruth Mita

89th Applicant

Jacklyne Muthee

90th Applicant

Mark Khaemba

91st Applicant

Samantha Kimani

92nd Applicant

Sharon Onono

93rd Applicant

Simon Kimani Chege

94th Applicant

Nicholas Muthoni

95th Applicant

Stellah Wamaitha

96th Applicant

Irene Muiyuro

97th Applicant

Lydia Danda

98th Applicant

Lucy Kalungu

99th Applicant

Grace Muiruri

100th Applicant

Mercy Chege Wambui

101st Applicant

Ralph Mshenga

102nd Applicant

Veronica Okoth

103rd Applicant

Catherine Karanja

104th Applicant

Mary-Edna Achieng Oballa

105th Applicant

Annastacia Ndunge Nzuki

106th Applicant

Faith Ngala

107th Applicant

Yvonne Kiragu

108th Applicant

Elizabeth Saxton

109th Applicant

Lilian Otieno

110th Applicant

Christine Nyibori Aruka

111th Applicant

Rosemary Chege

112th Applicant

Sheila Saidimu

113th Applicant

Antony Buyeka

114th Applicant

Grace Omari

115th Applicant

Miriam Nyambura Muriithi

116th Applicant

Rita Odundo

117th Applicant

Grace Wanjiku Kagwe

118th Applicant

Nzakwa Venessa

119th Applicant

Calvince Onyango

120th Applicant

Millicent Kilonzo

121st Applicant

Joseph Mutui

122nd Applicant

Derrick Munene

123rd Applicant

Sylvia Wanjiku Waweru.

124th Applicant

Hillary Rotich

125th Applicant

Winnie Njeri Njoroge

126th Applicant

Kevin Wachira

127th Applicant

and

Sendwave Limited (Zepz)

Respondent

(Being an application for extension of time to file the Record of Appeal against the Judgment of the Employment and Labour Relations Court of Kenya at Nairobi (Linet Ndolo, J.) dated 14th March 2024 in ELRC Cause No. E532 of 2023 Cause E532 of 2023 )

Ruling

1. In a judgment delivered on 14th March 2024 the Employment and Labour Relations Court (ELRC) (L. Ndolo, J.) allowed the applicants’ claim for unlawful and unfair termination of employment by way of redundancy and awarded each of them the equivalent of one month’s salary in lieu of notice. Their prayers for other reliefs including claims for house allowance for 7 months; 3 months’ pay in lieu of notice; 12 months’ salary compensation for unfair redundancy; severance pay; and bonuses were declined. Dissatisfied with part of the judgment and intending to appeal to this Court, the applicants through their present advocates, namely MAW Advocates LLP filed a Notice of Appeal dated 19th March 2024.

2. In their application dated 11th June 2024 prosecuted before me on 25th March 2025 by learned counsel for the applicants Mr. Wangila Waliaula, the applicants seek leave to appeal against the said judgment out of time. They assert in the affidavit sworn by Abraham Leon Ngaira on behalf of the applicants that having filed the Notice of Appeal dated 19th March 2024, they were unable to file the Memorandum and Record of Appeal within the stipulated period on account of “a disagreement” among them on the issue of representation in the appeal; that after the period of lodging the appeal had lapsed, the applicants instructed their advocates to file the present application; that they have since obtained a certified copy of the judgment and have prepared a complete record of appeal and are ready to file it without further delay.

3. Mr. Waliaula in his written and oral submissions submitted that in those circumstances, this is a proper case for the Court to exercise its discretion in favour of the applicants and extend time. In support, counsel cited decision of the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others [2014] eKLR and of this Court in Leo Sila Mutiso vs. Hellen Wangari Mwangi [1999] 2 EA 231 urging that the delay involved is not inordinate and has been satisfactorily explained; that no prejudice will be occasioned to the respondent and that the intended appeal raises serious triable issues.

4. Opposing the application, learned counsel Mr. Billy Wesonga relying on a replying affidavit sworn by Steve Carpenter, head of the respondent as well as his written submissions which he orally highlighted urged that the delay involved is not excusable; that the explanation offered is disingenuous as the applicants did file a notice of appeal dated 19th March 2024 though they did not serve it; that the respondent, which has already satisfied the award of the ELRC will be prejudiced having deemed the litigation as concluded as it was not served with the notice of appeal.

5. Citing decisions in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others and Leo Sila Mutiso vs. Hellen Wangari Mwangi as well as Paul Wanjohi Mathenge vs. Duncan Gichane Mathenge [2013] eKLR and Janet Nyandiko vs. Kenya Commercial Bank Limited [2014] KECA 293 (KLR) on the applicable principles, counsel urged that there was no plausible explanation for the delay and the application lacks merit.

6. In Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others the Supreme Court of Kenya pronounced that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; and that delay should be explained to the satisfaction of the court. Other considerations include whether there will be prejudice suffered by the respondents if the extension is granted; and whether the application is brought without undue delay. Public interest is also a relevant consideration.

7. The explanation offered by the applicants for the conceded delay involved is that having filed the Notice of Appeal dated 19th March 2024, they were unable to file the Memorandum and Record of Appeal within the stipulated period on account of “a disagreement” among them on the issue of representation in the appeal. It is however apparent that the Notice of Appeal was filed by the firm MAW Advocates LLP. There is no suggestion that that firm did not have instructions from the applicants to do so. It must be deemed to have had instructions to file the appeal. It is the same firm of advocates that filed the present application on behalf of the applicants. The assertion that a disagreement on representation impeded timely filing of the appeal is therefore not convincing. I am therefore inclined to agree with counsel for the respondent that the delay has not been satisfactorily explained.

8. Counsel also informed the Court during the hearing of the application that the respondent, not having been served with a notice of appeal, adjusted its position and satisfied the judgment amount on the belief that litigation on the matter was at an end. There is merit therefore in the argument that the respondent would suffer prejudice in having the matter re-opened.

9. All in all, I am not persuaded that the applicants have laid a proper basis for the Court to exercise its discretion in their favour. The applicants’ application dated 11th June 2024 fails and is hereby dismissed with costs to the respondent.

DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF MAY, 2025. S. GATEMBU KAIRU, FCIArb................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.