Board of Governors Kenya Baptist Theological College v Evans Mwana Katana Dzuya [2021] KEELRC 1342 (KLR)
The bottom line
#Kenya's Employment Court allowed a late appeal because the litigant was diligent and its former advocates caused the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 9 Rule 9 barred the incoming advocates from acting
The Rule applies to the matter in the lower court after judgment, not to an appeal; the new advocates were properly on record
Adopting Muchemi J.'s reasoning in Charles Njagi Ireri, the court held that Order 9 Rule 9 was designed to protect advocates from clients avoiding fees in the same suit after judgment. An appeal is a different proceeding altogether in which a party may freely appoint new counsel, who need only file a notice of appointment.
Whether extension of time should be granted
Yes. The delay was explained by former advocates' failings; the Applicant was diligent; the decretal sum was deposited in court removing prejudice
The court weighed the settled four factors: the delay was occasioned by former advocates' lackadaisical approach despite the Applicant's diligence; the intended appeal raised arguable grounds regarding the compensatory award; and the Applicant had deposited the entire decretal sum of Kshs. 599,785/- in the Judiciary account, eliminating prejudice to the Respondent.
Legal principles established
#- Extension of time is discretionary and governed by four considerations: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent
- Order 9 Rule 9 CPR applies to proceedings in the original suit after judgment, not to an appeal, which is a different proceeding
- A litigant who follows up on the case but is misled by an advocate's mistake should not be shut out
Court orders
#- 1.Extension of time granted to the Applicant to file a record of appeal out of time
- 2.The appeal record must be filed within 60 days
- 3.Costs of the motion to abide the outcome of the Appeal
- On appeal from
- Senior Principal Magistrate's Court at Limuru
- ELRC Cause No. 1 of 2019
- Jurisdiction invoked
- Appellate jurisdiction over subordinate court decisions under the Employment and Labour Relations Court Act; application for extension of time
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Star Publications Ltd v Simiyu (Civil Appeal 23 of 2018) [2023] KECA 23 (KLR)[2023] KECA 23 (KLR)26 Jan 2023
Cite this brief
#Cite this brief
Caselaw, "Board of Governors Kenya Baptist Theological College v Evans Mwana Katana Dzuya [2021] KEELRC 1342 (KLR)", Case Analysis (2021). Nairobi ELRC Appeal Cause No. E017 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1342/eng@2021-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.