William Tony Ang'weya v Sarova Hotels [2013] KEELRC 170 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)

25 July 2013

DMD.K. Njagi Marete

651 words in judgment

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The bottom line

Kenya's Industrial Court allowed a former employee to sue 16 years after his dismissal because his lawyer died, he was ill, and the employer caused delay.

What this practically means

Executive summary

This was a Notice of Motion dated 15th November 2012 by William Tony Ang’wea, the claimant/applicant, seeking leave of the Industrial Court to file his claim out of time and costs of the application. The claimant averred that he was employed by the respondent in 1992 and that his employment was illegally terminated in 1997. He instructed the law firm of Onyango Ongeche & Company Advocates to pursue the matter, but despite assurances, the matter was never prosecuted; the advocate later died. The claimant further attributed the delay to ill health and depression, and to ongoing interactions with the respondent, which concluded only on 2nd December 2011 when the respondent issued him a clearance that indicated neither the last date of service nor terminal dues, and was unaccompanied by payment. He maintained that a second appeal dated 2nd December 1997 remained unanswered and that the respondent would suffer no prejudice if leave were granted. Counsel for the applicant appeared at the hearing and canvassed these grounds. The court, per D.K. Njagi Marete, J, found the application deserving, holding that the respondent would not be prejudiced and could still defend the claim, and that the delay was occasioned by circumstances beyond the applicant's control, including the respondent's inertia, bureaucracy and lack of diligence. The court allowed the application, directed the applicant to file his claim within thirty days, and ordered costs of the application to be on cause. Judgment was dated, delivered and signed on 25th July 2013.

Key legal issues

Extension of time to file a claim out of time

Holding

The application was a deserving case for extension of time.

Reasoning

The court found the delay was caused by circumstances beyond the applicant's control: his advocate (Onyango Ongeche) died before pursuing the matter, the applicant was ailing, and the respondent delayed clearance and negotiations until 2nd December 2011. The respondent was found capable of defending the claim without prejudice, so the balance favoured granting leave.

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Prejudice to the respondent

Holding

The respondent would suffer no prejudice and could still defend the claim.

Reasoning

The court reasoned that in all the circumstances the respondent was not prejudiced by the lapse of time, since it would in any event be able to defend the claim on its merits once filed, thereby satisfying a key consideration for exercising discretion to extend time.

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Responsibility for the delay

Holding

The applicant should not be penalised for a delay partly attributable to the respondent.

Reasoning

The court attributed part of the delay to the respondent's inertia, bureaucracy and lack of diligence, including failure to indicate the last date of service, terminal dues, and refusal to clear the claimant until 2nd December 2011, and held the claimant should not be punished for these failings.

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Legal principles established

Delay in filing a claim attributable to circumstances beyond an applicant's control, including the respondent's own inertia and lack of diligence, justifies extension of time where the respondent suffers no prejudice.

Court orders

1.Leave granted to the applicant to file his claim out of time
2.The applicant to file his claim within thirty (30) days from the date of the ruling
3.Costs of the application to be on cause

Jurisdiction invoked: Discretionary power to grant leave to file a claim out of time under the Court's employment jurisdiction (specific statutory provision not cited in the judgment)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "William Tony Ang'weya v Sarova Hotels [2013] KEELRC 170 (KLR)", Case Analysis (2013). Notice of Motion dated 15th November, 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/170/eng@2013-07-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.