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ELRCPartially AllowedApplication dated 6th March, 2018 (arising from Sotik PMCC No. 31 of 2003)· [2018] KEELRC 1706 (KLR)

Sotik Tea Company Limited v Mary Kerubo Mandera [2018] KEELRC 1706 (KLR)

Employment and Labour Relations Court
20 June 2018
DMD.K. Njagi Marete
892 words in judgment
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The bottom line

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Kenya's Employment and Labour Relations Court struck out an appeal filed 15 months late because leave obtained from the High Court doesn't transfer between courts.

What this practically means

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Executive summary

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This was an application dated 6th March, 2018 before the Employment and Labour Relations Court seeking the striking out of an appeal against the judgment and decree of the Sotik PMCC No. 31 of 2003 delivered on 10th September 2015. The respondent/applicant argued that the memorandum of appeal, dated 2nd December 2016 and filed on 5th December 2016, was lodged some fifteen months after judgment, contrary to section 79G of the Civil Procedure Act which requires appeals from subordinate courts to be filed within 30 days, and without leave of the ELRC. The applicant further contended that leave to appeal out of time granted by the High Court at Bomet in Civil Application No. 53 of 2015 could not operate in the ELRC, the High Court having no jurisdiction in employment and labour relations matters. The appellant/respondent opposed, relying on Edward Njane Nganga v Damaris Wanjiku Kamau to argue that the High Court's jurisdiction to extend time is now shared with courts of equal status. The court, D.K.Njagi Marete J, rejected this submission, holding that the High Court and the ELRC are distinct courts of equal status whose jurisdiction cannot be swapped, and that leave should have been sought before the ELRC before commencement of the appeal, particularly as the judgment appealed against was a post-2010 Constitution judgment. The application was allowed with costs, and the appeal was struck out.

Key legal issues

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01

Whether the memorandum of appeal filed 15 months after judgment without leave of the ELRC is properly on record

Holding

The appeal was filed out of time and without leave of this court; leave granted by the High Court at Bomet could not operate in the ELRC; the appeal was struck out.

Reasoning

The judgment appealed against was delivered on 10/09/2015 but the memorandum of appeal was filed on 5/12/2016, well beyond the 30 days allowed under section 79G of the Civil Procedure Act. A party wishing to appeal out of time must seek leave from the court hearing the appeal. The ELRC and the High Court are distinct courts of equal status with separate jurisdiction; leave granted by one cannot serve the other. The judgment was a post-2010 Constitution judgment within the ELRC's establishment.

p. 2

Legal principles established

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  • Leave to appeal out of time granted by the High Court cannot operate in the Employment and Labour Relations Court, the two being courts of distinct jurisdiction and status
  • Where an appeal is filed out of time without leave of the court seized of the appeal, the court has no jurisdiction to enlarge time where enlargement has not been sought

Court orders

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  1. 1.The application dated 6th March, 2018 is allowed
  2. 2.The appeal is struck out
  3. 3.Costs of the application to the respondent/applicant

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21, Laws of Kenyasection 79G

Cases cited (1)

  • Edward Njane Nganga & another v Damaris Wanjiku Kamau & another
    [2016] eKLR
On appeal from
Sotik Principal Magistrate's Court
PMCC No. 31 of 2003
Jurisdiction invoked
Section 79G of the Civil Procedure Act, Chapter 21, Laws of Kenya

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, "Sotik Tea Company Limited v Mary Kerubo Mandera [2018] KEELRC 1706 (KLR)", Case Analysis (2018). Application dated 6th March, 2018 (arising from Sotik PMCC No. 31 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1706/eng@2018-06-20

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