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ELRCAllowedNot stated in the judgment (arising from intended appeal against judgment in Kaloleni SRMCC No. 20 of 2015)· [2019] KEELRC 1667 (KLR)

Changawa Chome Ngala v Athi River Mining Cement Limited [2019] KEELRC 1667 (KLR)

Employment and Labour Relations Court
14 May 2019
791 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed an appeal filed just four days late, showing courts will forgive short, honestly explained delays that harm no one.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Malindi (Linnet Ndolo, J) determines an application by Notice of Motion dated 16th July 2018 in which the Appellant sought leave to file a Memorandum of Appeal out of time. The intended appeal challenges the judgment delivered on 21st March 2018 in Kaloleni SRMCC No. 20 of 2015 dismissing the Appellant's suit. The Appellant explained that he was never notified of the delivery date, had lost his mobile phone containing his advocate's contacts, discovered the dismissal around 5th April 2018, traced his case number through the court's customer care on 12th April 2018, obtained the judgment on 19th April 2018, and instructed new advocates who filed the Memorandum of Appeal on 24th April 2018, four days out of time. The Respondent did not oppose the application. The court adopted the four factors restated by the Court of Appeal in Donald O. Raballa v Judicial Service Commission & another [2018] eKLR and the Supreme Court's affirmation in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR that the factors are not closed and the discretion is unfettered. Finding the delay not inordinate, no demonstrable prejudice to the Respondent, and the Memorandum of Appeal raising substantial issues meriting consideration, the court allowed the application, directed the incoming firm of Wanjiku Mohamed Advocates to perfect its appearance by obtaining written concurrence from the firm of Kariuki, Gathuthi & Company Advocates, and made no order for costs.

Key legal issues

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01

Whether the delay of 4 days in filing the Memorandum of Appeal was adequately explained and whether extension of time should be granted

Holding

Yes. The Appellant gave a detailed explanation for the delay; the delay was not inordinate, no prejudice was demonstrated against the Respondent, and the Memorandum of Appeal raised substantial issues meriting consideration.

Reasoning

Applying the Raballa factors (length of delay, reason for delay, chances of appeal succeeding, prejudice to Respondent) and the Twaha affirmation that the list of factors is not closed, the court found the Appellant's explanation - non-notification of judgment, loss of phone contacts and relocation of his former advocates - sufficient, and exercised its discretion in his favour.

p. 2

Legal principles established

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  • The factors for consideration in an application to extend time for filing an appeal are not closed and each case is to be considered on its own merit; the Court's discretion is unfettered and it is upon the Applicant to convince the Court that they deserve exercise of discretion in their favour.

Court orders

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  1. 1.The application dated 16th July 2018 is allowed - leave granted to file the Memorandum of Appeal out of time
  2. 2.The firm of Wanjiku Mohamed Advocates is directed to perfect its appearance by obtaining and filing written concurrence from the firm of Kariuki, Gathuthi & Company Advocates
  3. 3.No order for costs

Authorities

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Cases cited (2)

  • Donald O. Raballa v Judicial Service Commission & another
    [2018] eKLR
  • Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others
    [2015] eKLR
On appeal from
Kaloleni Senior Resident Magistrate's Court
Kaloleni SRMCC No. 20 of 2015
Jurisdiction invoked
Inherent discretion to extend time for filing an appeal out of time (not expressly tied to a constitutional or statutory article in the judgment)

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, "Changawa Chome Ngala v Athi River Mining Cement Limited [2019] KEELRC 1667 (KLR)", Case Analysis (2019). Not stated in the judgment (arising from intended appeal against judgment in Kaloleni SRMCC No. 20 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1667/eng@2019-05-14

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