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ELRCStruck OutNot stated in judgment· [2020] KEELRC 966 (KLR)

Martin O. Oluoch & 3 others v Kenyatta National Hospital Board & another [2020] KEELRC 966 (KLR)

Employment and Labour Relations Court
21 May 2020
583 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 struck out a late appeal application filed under the wrong rules, allowing the winning party to execute the judgment.

What this practically means

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Executive summary

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The Respondents filed a Notice of Motion dated 29/01/2020 seeking extension of time to file an appeal out of time against a judgment and decree dated 14/11/2016, and stay of execution. The Claimants raised a Preliminary Objection on multiple grounds: that the application was filed under wrong provisions of law, namely Sections 3A and 7 of Cap 9 and Rules 4 and 53(1) of the Court of Appeal Rules, which apply only to the Court of Appeal and not the High Court; that stay could only be sought under Order 42 Rule 6 and extension of time under Order 50 Rule 6 of the Civil Procedure Rules; that the decree had been substantially satisfied; and that the Respondents had already filed a Notice of Appeal on 05/12/2016 which they had failed to prosecute for over three years. The court upheld the objection. It reasoned that granting extension of time would create a second appeal that would be sub judice given the dormant Notice of Appeal already on record, and declined the extension. On stay, the court held that since the only appeal was the unprosecuted one pending before the Court of Appeal, that court was the proper forum to grant stay after considering the appeal's merits. The court found the Preliminary Objection had merit, struck out the Respondents' application, ordered that execution proceeds, and awarded costs in the cause. The ruling was delivered in chambers via zoom on 21 May 2020 by Lady Justice Hellen Wasilwa, with no appearance for the parties.

Key legal issues

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01

Jurisdiction to extend time for filing an appeal in the High Court

Holding

The application was incompetent as founded on Court of Appeal Rules provisions inapplicable in the High Court; the correct avenue is Order 50 Rule 6 of the Civil Procedure Rules

Reasoning

The Claimants objected that Sections 3A and 7 of Cap 9 and Rules 4 and 53(1) of the Court of Appeal Rules apply only to the Court of Appeal and not the High Court. The court accepted the objection and struck out the application, also declining extension of time on the merits because a Notice of Appeal from 2016 remained unprosecuted.

p. 1
02

Stay of execution where an appeal is pending before the Court of Appeal

Holding

Stay cannot be granted by this court; the Court of Appeal is the proper forum

Reasoning

Since the only appeal on record is the unprosecuted appeal before the Court of Appeal, this court held that any stay application should be addressed to that court, which can consider the merits of the pending appeal.

p. 2
03

Effect of a dormant Notice of Appeal on an application to file a fresh appeal out of time

Holding

Granting the extension would create a duplicative, sub judice appeal; the application is declined

Reasoning

The Respondents admitted filing an appeal in 2016 which they never prosecuted for over three years. The court reasoned that allowing a second appeal out of time would result in two parallel appeals on the same judgment, offending the sub judice principle.

p. 2

Legal principles established

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  • Where an applicant has already filed a Notice of Appeal against the same judgment and failed to prosecute it, the court will decline an extension of time to file a further appeal out of time to avoid a duplicative appeal being sub judice
  • Stay of execution of a judgment pending an appeal already lodged in the Court of Appeal is a matter for the Court of Appeal, not the trial court

Court orders

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  1. 1.The Preliminary Objection is upheld
  2. 2.The Respondents' Notice of Motion application is struck out
  3. 3.Execution to proceed
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Act (Cap 9)Section 3A
  • Civil Procedure Act (Cap 9)Section 7
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 53(1)
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 50 Rule 6
Jurisdiction invoked
Employment and Labour Relations Court's inherent and procedural jurisdiction under the Civil Procedure Act (Cap 9) and Civil Procedure Rules, as invoked by the parties (Sections 3A and 7 of Cap 9; Order 42 Rule 6; Order 50 Rule 6 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, "Martin O. Oluoch & 3 others v Kenyatta National Hospital Board & another [2020] KEELRC 966 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/966/eng@2020-05-21

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