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ELRCAllowedNairobi ELRC Appeal Cause No. E017 of 2021· [2021] KEELRC 1342 (KLR)

Board of Governors Kenya Baptist Theological College v Evans Mwana Katana Dzuya [2021] KEELRC 1342 (KLR)

Employment and Labour Relations Court
3 June 2021
2,740 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed a late appeal because the litigant was diligent and its former advocates caused the delay.

What this practically means

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Executive summary

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The Applicant filed a Notice of Motion seeking extension of time to file a record of appeal out of time against part of the judgment of the Senior Principal Magistrate's Court at Limuru in ELRC Cause No. 1 of 2019 delivered on 8th December 2020, specifically the award of Kshs. 483,000/- as compensatory damages for unfair termination. The Applicant attributed the delay to its former advocates, Kirwa Koskei & Co. Advocates, who failed to notify it of the judgment until 1st February 2021. The Respondent opposed the motion through Grounds of Opposition, arguing that the incoming advocates had come on record without leave or consent contrary to Order 9 Rule 9 of the Civil Procedure Rules, that the Applicant was guilty of laches and moved only after its motor vehicle was carted away by auctioneers, and that the trial court's award was discretionary. On the representation issue, the court, applying Charles Njagi Ireri v Njeru Simon Gathuri & Another, held that Order 9 Rule 9 applies to proceedings in the original suit after judgment, not to an appeal, which is a different proceeding. On the extension of time, the court applied the settled four-factor test: the delay was explained by the former advocates' lackadaisical approach while the Applicant itself was keen and diligent; the intended appeal raised arguable grounds; and the Applicant had deposited the entire decretal sum of Kshs. 599,785/- in the Judiciary account, eliminating prejudice to the Respondent. The court allowed the motion, granted extension of time, ordered the record of appeal to be filed within 60 days, and directed that costs of the motion abide the outcome of the appeal.

Key legal issues

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01

Whether Order 9 Rule 9 barred the incoming advocates from acting

Holding

The Rule applies to the matter in the lower court after judgment, not to an appeal; the new advocates were properly on record

Reasoning

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.

p. 3
02

Whether extension of time should be granted

Holding

Yes. The delay was explained by former advocates' failings; the Applicant was diligent; the decretal sum was deposited in court removing prejudice

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Extension of time granted to the Applicant to file a record of appeal out of time
  2. 2.The appeal record must be filed within 60 days
  3. 3.Costs of the motion to abide the outcome of the Appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Employment Act, 2007Sections 49 & 50

Cases cited (7)

  • Stephen Mwangi Kimote v Murata Sacco Society
    [2018] eKLR
  • Gerald Mwithia v Meru College of Technology (Sued through The Chairman Board of Governors) & Another
    [2018] eKLR
  • Charles Omwata Omwoyo v African Highlands & Produce Co. Ltd
    [2002] eKLR
  • Josephat Mulongo Wekesa v The Clerk County Council of Lugari
    [2016] eKLR, Kakamega High Court Misc. Civil Application No. 32 of 2013
  • Charles Njagi Ireri v Njeru Simon Gathuri & Another
    [2019] eKLR, Embu High Court Civil Appeal No. 122 of 2012
  • Martha Wangari Karua v IEBC & 3 Others
    [2018] eKLR, Nyeri High Court Civil Appeal No. 1 of 2017
  • Mary Nchekei Paul v Francis Mundia Ruga
    [2019] eKLR, Court of Appeal at Nyeri, Civil Application No. 99 of 2018
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.