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ELRCAllowedIndustrial Cause No. 550 of 2013 (related); Application dated 12.6.2015· [2018] KEELRC 1071 (KLR)

Jacob Buhungi Elaki v Attorney General [2018] KEELRC 1071 (KLR)

Employment and Labour Relations Court
26 September 2018
HWHellen Wasilwa
982 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court granted an 11-year-delayed appeal because the court itself delayed releasing the leave order, showing court-caused delay can excuse missed appeal deadlines.

What this practically means

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Executive summary

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The Applicant sought a further extension of time to file an appeal against the judgment and decree of Hon. Mrs. Muketi (SPM) in Milimani CMCC No. 7177 of 2004, and a further 30-day extension of the leave granted by Ang'awa J on 27 July 2011 in H.C. Miscellaneous Application No. 233 of 2011. The application was supported by the affidavit of the Claimant's counsel, Simeo Mugalavai Keyonzo, who deponed that the court file granting leave went missing, preventing extraction of the order for inclusion in the Record of Appeal. The Respondent opposed through Grounds of Opposition filed 16 March 2018, arguing the claims of a missing file were unsubstantiated, that the Applicant wrote only one letter in four years and was indolent, that the Applicant had not demonstrated probability of success, and that the delay prejudiced the Respondent's right to a fair hearing under Article 50(2)(e) of the Constitution. The court found the Applicant's claim that Judge Ang'awa misplaced the file to be hearsay and noted an inordinate delay of about 11 years since the 2007 judgment. However, it observed that leave to appeal was granted on 27 July 2011 but the order was only signed by the Deputy Registrar on 10 October 2011, after the 30-day period had expired. Attributing the delay partly to the Court's own delay in availing the order, the court granted the Applicant leave to appeal, to be effected within 30 days, with costs of the application to abide the results of the intended appeal. Judgment delivered on 26 September 2018 by Hon. Lady Justice Hellen Wasilwa.

Key legal issues

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01

Whether inordinate delay in filing the intended appeal disentitles the Applicant from an extension of time

Holding

Although there was inordinate delay and indications of indolence, the delay on the Court's part in signing the order granting leave (signed 10.10.2011, after the 30-day period expired) justified granting further leave

Reasoning

The court noted judgment was delivered in 2007 and the Applicant only wrote one letter to the Deputy Registrar, indicating indolence; the claim that Judge Ang'awa misplaced the file was hearsay. However, leave had been granted on 27.7.2011 and the order was only signed by the Deputy Registrar on 10.10.2011, after the 30 days had expired. This Court-caused delay tipped the balance in favour of granting leave.

p. 2
02

Whether the contention that the Court file went missing was established on evidence

Holding

The claim that the Judge misplaced the file was mere hearsay and unsupported; there was no indication the file was missing

Reasoning

The court found the Applicant wrote to the Deputy Registrar on 25/8/2011 asking for the Court order but there was no indication that the Court file was missing. The contention that Judge Ang'awa misplaced the file was characterized as hearsay. Notably, the Applicant had filed a copy of the order (Appendix JE6) signed on 10.10.2011.

p. 2

Legal principles established

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  • Where delay in filing an appeal is attributable in part to the Court's delay in availing an order granting leave to appeal out of time, the court may grant further leave in the interests of justice

Court orders

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  1. 1.Leave granted to the Applicant to appeal against the judgment in Milimani CMCC No. 7177 of 2004, to be effected within 30 days
  2. 2.Costs of the application to abide the results of the intended appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 50(2)(e)
On appeal from
Milimani Chief Magistrate's Court
CMCC No. 7177 of 2004
Jurisdiction invoked
Inherent leave/extension of time jurisdiction of the Court following prior leave granted by Ang'awa J in H.C. Miscellaneous Application No. 233 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jacob Buhungi Elaki v Attorney General [2018] KEELRC 1071 (KLR)", Case Analysis (2018). Industrial Cause No. 550 of 2013 (related); Application dated 12.6.2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1071/eng@2018-09-26

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