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ELRCAllowedNotice of Motion dated 17th June 2019· [2019] KEELRC 935 (KLR)

Maina Munyua v Amref Health Africa (Previously African Medical and Research Foundation Kenya) [2019] KEELRC 935 (KLR)

Employment and Labour Relations Court
2 August 2019
MOMaureen Onyango
1,732 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court allowed a late appeal because access to justice matters, but the delayed party paid costs.

What this practically means

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Executive summary

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The Claimant, Maina Munyua, moved the Employment and Labour Relations Court by Notice of Motion dated 17th June 2019 under Article 159(2)(d) of the Constitution, the Appellate Jurisdiction Act, the Civil Procedure Act and Rules, seeking extension of time to file a Notice of Appeal against the judgment of Onyango J. delivered on 6th May 2019. He explained that his advocates promptly sought a certified copy of the judgment, which was only released on 22nd May 2019, by which time the 14-day period under Rule 75(2) of the Court of Appeal Rules had lapsed. The Respondent, through its Legal Manager Diana Amuhaya, opposed, contending that filing a Notice of Appeal does not depend on certification of the judgment, that the Applicant's letter requesting judgment was filed 11 days after delivery, that he never indicated an intention to appeal until 21 days after judgment, and that the application was filed 42 days after judgment without sufficient cause. The court framed one issue: whether the Applicant had set out sufficient grounds to justify the extension. Relying on Njuguna v Magichu, Pan African Paper Mills v Olaka and Christopher Mugo Kamotho, the court found the Applicant had not been candid about the timeline. Nevertheless, weighing his constitutional right to a fair hearing and access to justice, the court granted leave to file the Notice of Appeal out of time, but ordered the Claimant to pay the Respondent's costs of the application.

Key legal issues

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01

Whether sufficient cause was shown to extend time to file a Notice of Appeal

Holding

Application allowed despite the delay, on the basis of the constitutional right to a fair hearing and access to justice, but with costs to the Respondent

Reasoning

The court accepted the Respondent's position that the Applicant was not candid - he did not apply for a certified copy of the judgment until 17th May 2019 and failed to explain what he did after requesting it or why he needed a certified copy to decide whether to appeal. However, the court weighed the Applicant's constitutional right to a fair hearing encompassing access to justice to the highest level, and exercised its discretion to grant the extension while compensating the Respondent with costs.

p. 3

Legal principles established

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  • The discretion to extend time under Rule 4 is unfettered but must be exercised judicially on sound factual and legal basis
  • A court considering extension of time considers the length of and reason for delay, chances of the appeal succeeding, and prejudice to the respondent
  • Filing of a Notice of Appeal is not dependent on certification of the judgment

Court orders

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  1. 1.Leave granted to the Claimant to file his Notice of Appeal out of time
  2. 2.Claimant to pay Respondent's costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Appellate Jurisdiction Act Cap 9Sections 3A, 7
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 50 Rule 5; Order 51 Rule 1
  • Court of Appeal Rules 2010Rule 75(2)
  • Employment and Labour Relations Court ActSection 3(1)

Cases cited (3)

  • Njuguna -v- Magichu & 73 others
    [2003] KLR 507
  • Pan African Paper Mills (EA) Ltd -Vs- Olaka
    [2001] KLR
  • Christopher Mugo Kamotho vs. the Hon. Attorney General
    [2009] eKLR
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Sections 3A and 7 of the Appellate Jurisdiction Act Cap 9; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 50 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules 2010

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, "Maina Munyua v Amref Health Africa (Previously African Medical and Research Foundation Kenya) [2019] KEELRC 935 (KLR)", Case Analysis (2019). Notice of Motion dated 17th June 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/935/eng@2019-08-02

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