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ELRCDismissedNotice of Motion dated 17th September 2013 in Industrial Court cause (claim lodged 2009)· [2014] KEELRC 534 (KLR)

Kenya Union of Domestic Hotels, Educational Institutions, Hospitals & Allied Workers (Kudheiha) v Nairobi Club [2014] KEELRC 534 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
17 March 2013
2,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a union's bid to appeal late, confirming that missed appeal deadlines need a genuinely good reason, not excuses.

What this practically means

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Executive summary

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The claimants filed a Notice of Motion dated 17th September 2013 seeking leave to file a Notice of Appeal and Record of Appeal out of time against the ruling of 10th May 2013 delivered by Lady Justice Monica Mbaru, and an order deeming the Notice of Appeal filed on 6th June 2013 as filed within time. The application was supported by affidavits of Dennis Muriithi and George Chesire, who explained the delay as arising from the departure from the firm of Dennis Mosotah Advocate, who had handled the matter and failed to file the Notice of Appeal as instructed. The respondent opposed, arguing the Industrial Court lacked jurisdiction to extend time and that there was no arguable appeal. The court framed two issues: the applicable law before the Industrial Court in seeking extension of time, and whether the orders should issue. It held that the Industrial Court, a superior court of record with the status of the High Court under Article 162(2)(a), has jurisdiction under section 7 of the Appellate Jurisdiction Act, and that High Court procedure applies where its own rules are silent. However, on the facts, no sufficient reason was shown: the claimants' advocates appeared repeatedly in court after the ruling without indicating an intention to appeal, no draft memorandum of appeal had been filed, and the delay reflected indolence rather than inadvertence. Considering the conduct of the parties and the expectation of clean hands in discretionary applications, the court dismissed the application with costs to the respondent.

Key legal issues

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01

Jurisdiction of the Industrial Court to extend time for filing a Notice of Appeal

Holding

The Industrial Court has jurisdiction; it is a High Court in status and the High Court's rules apply where its own rules are silent.

Reasoning

The court held that the Industrial Court, established under Article 162(2)(a) with the status of the High Court, may invoke section 7 of the Appellate Jurisdiction Act and High Court procedure where the Industrial Court Procedure Rules make no specific provision. Appeals from the court lie to the Court of Appeal, and applying High Court rules creates no lacuna.

p. 3
02

Whether sufficient reason existed to extend time

Holding

No sufficient reason was shown; the delay was attributable to the claimants' advocates' lack of diligence.

Reasoning

The court tracked the cause listing and found Muriithi Advocate consistently appeared after the ruling of 10th May 2013 to pursue tabulation of dues without indicating an intention to appeal. The departure of the advocate Mosotah on 30th June 2013 did not excuse the failure. No draft memorandum of appeal had been filed, and the successful party was entitled to assume the fight was over.

p. 3
03

Whether the discretionary orders should issue given the parties' conduct

Holding

The court declined the orders, considering the conduct of the parties and clean-hands expectations in discretionary applications.

Reasoning

The claim was filed in 2009, had been to the Court of Appeal and back, and there was a judgment and a ruling on review. The claimants had consistently appeared to enforce the ruling and consult on tabulation of dues, and no draft memorandum of appeal had been filed since 10th May 2013, demonstrating the application was not meritorious.

p. 4

Legal principles established

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  • The Industrial Court (Labour Relations Court), being a superior court of record with the status of the High Court under Article 162(2)(a), may apply the High Court rules and section 7 of the Appellate Jurisdiction Act to extend time to file a Notice of Appeal where its own Procedure Rules contain no specific provision, as there is no lacuna.
  • An application for extension of time to appeal must be supported by sufficient reason for failing to do what ought to have been done; ordinary diligence on the part of the advocate is expected.

Court orders

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  1. 1.The orders sought are declined
  2. 2.The application dated 17th September 2013 is dismissed
  3. 3.Costs to the respondent
Jurisdiction invoked
Article 162(2)(a) of the Constitution (Labour Relations Court with the status of the High Court); section 7 of the Appellate Jurisdiction Act; sections 1A and 1B of the Civil Procedure Act; Order 50 rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Domestic Hotels, Educational Institutions, Hospitals & Allied Workers (Kudheiha) v Nairobi Club [2014] KEELRC 534 (KLR)", Case Analysis (2013). Notice of Motion dated 17th September 2013 in Industrial Court cause (claim lodged 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/534/eng@2014-03-17

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