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ELRCAllowedThika CMCC No. 223 of 2008 (application dated 6th June 2019)· [2020] KEELRC 1501 (KLR)

Teachers Service Commission v Benson Kuria Mwangi [2020] KEELRC 1501 (KLR)

Employment and Labour Relations Court
27 February 2020
MOMaureen Onyango
3,012 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 let the Teachers Service Commission appeal late because it never got notice of the judgment, and froze the payout meanwhile.

What this practically means

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Executive summary

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This was an application dated 6th June 2019 by the Teachers Service Commission, a public entity, seeking leave to appeal out of time and stay of execution of a judgment of Hon. T. Murigi in Thika CMCC No. 223 of 2008 delivered on 19th December 2018. The applicant said the judgment was delivered without notice to it, that it only learned of the judgment on 8th May 2019, and filed the application within 33 days of that awareness. The respondent opposed, arguing the delay of seven months was inordinate and inexcusable, that litigation must come to an end, that the award was fair (he had claimed Kshs.4,049,600), and that magistrates' courts have jurisdiction over employment matters under Section 9 of the Magistrates Courts Act. Both sides filed written submissions. The applicant relied on Section 79G of the Civil Procedure Act and Order 50 Rule 6, argued the trial court breached Order 21 Rule 1 by failing to issue a judgment notice (supported by the trial court's letter of 7th May 2019 apologising), invoked Article 164(3) of the Constitution and Section 17 of the Employment and Labour Relations Court Act, and claimed it was exempt from security under Order 42 Rule 8 and Section 21 of the TSC Act. Maureen Onyango J found the applicant had no notice of the judgment date, which was a valid explanation for the delay; the application was filed within 33 days of awareness. Public interest favoured stay since the decretal sum was payable from public funds, and the grounds of appeal were not frivolous. Security was dispensed with under Order 42 Rule 8. The court granted leave to appeal out of time and stay of execution, conditioned on filing the appeal within 60 days, with costs in the appeal.

Key legal issues

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01

Whether the delay in filing the appeal was excusable

Holding

The court held the applicant's lack of notice of the judgment date was a valid explanation for the delay.

Reasoning

The trial court had delivered judgment without issuing a judgment notice as required by Order 21 Rule 1 of the Civil Procedure Rules. The applicant became aware of the judgment on 8th May 2019 and filed the application within 33 days of that awareness. The court accepted this as good and sufficient cause under Section 79G of the Civil Procedure Act, noting the application was made expeditiously once the applicant knew of the judgment.

p. 4
02

Whether stay of execution pending appeal should issue

Holding

Stay of execution was granted, conditioned on filing the appeal within 60 days.

Reasoning

The court considered Order 42 Rule 6(1), the public interest in a public institution's decretal sum being payable from public funds, and the grounds of appeal, which it found not frivolous. As a public institution, the applicant was exempt from furnishing security under Order 42 Rule 8.

p. 4

Legal principles established

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  • Lack of notice of the date of judgment is a valid explanation for delay in filing an appeal, and time runs from the date the party became aware of the judgment.
  • Public institutions are exempt from depositing security for costs under Order 42 Rule 8 of the Civil Procedure Rules.

Court orders

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  1. 1.Leave granted to the Applicant to file an appeal out of time against the Judgment of Hon. T. Murigi in Thika CMCC No. 223 of 2008 delivered on 19th December 2018
  2. 2.Stay of execution of judgment and all consequent orders pending the lodgement, hearing and determination of the intended appeal
  3. 3.The stay is conditional upon the applicant filing appeal within 60 days from date of the ruling
  4. 4.Costs shall be in the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 Rule 6 (and Rule 5)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rules 6, 7 and 8
  • Employment and Labour Relations Court ActSection 17
  • Teachers Service Commission ActSection 21
  • Magistrates Courts ActSection 9
  • Evidence ActSection 112
  • Defamation Act
  • Employment Act
  • Constitution of KenyaArticle 164(3)
  • Constitution of KenyaArticle 260

Cases cited (9)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 Others
    [2014] eKLR
  • TSC v Simon P. Kamau
    Nyeri Civil Application No. 95 of 2017
  • African Safari Club Limited v Safe Rentals Limited
    Civil Application No. 53 of 2010 (2010) eKLR
  • Mutuma Mugambi v Kenya Methodist University
    Nairobi Cause No. 221 of 2010 [2016]
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another
    Civil Application No. 238 of 2005 [2006] eKLR
  • Kiplagat Kotut v Rose Jebor Kipngok
    [2015]
  • G. N. Muema P/A (sic), Mt. View Maternity and Nursing Home v Miriam Maalim Bishar and Another
    (2018)
  • Thuita Mwangi v Kenya Airways Ltd
    [2003] KLR
  • Samuel Mwaura Muthumbi v Josephine Wanjiru Nquqi & another
    [2018] eKLR
On appeal from
Thika Chief Magistrate's Court
CMCC No. 223 of 2008
Jurisdiction invoked
Article 164(3) of the Constitution and Section 17 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Teachers Service Commission v Benson Kuria Mwangi [2020] KEELRC 1501 (KLR)", Case Analysis (2020). Thika CMCC No. 223 of 2008 (application dated 6th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1501/eng@2020-02-27

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