Muravvej Holdings Ltd v Mwadzoya (Miscellaneous Case E060 of 2021) [2022] KEELRC 21 (KLR)
The bottom line
#A Mombasa court allowed a late appeal in an employment case but only stopped the debt collection if the full amount, Ksh. 357,978.58, was deposited within 14 days.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant leave to appeal out of time
The ELRC (Procedure) Rules 2016 are silent on extension of time for filing appeals; the Court invokes Section 79G of the Civil Procedure Act, being a Court of equal status with the High Court under Article 162(2)(a) of the Constitution
Rule 8 of the ELRC (Procedure) Rules 2016 prescribes a thirty-day period where no period is specified in the written law but is silent on extension of time. The Court reasoned that, being a Court of equal status with the High Court by dint of Article 162(2)(a) of the Constitution, the proviso to Section 79G of the Civil Procedure Act, which permits admission of an appeal out of time on good and sufficient cause, is available to it.
Whether leave to appeal out of time should be granted despite absence of cogent reasons for delay
Although the Applicant did not give cogent reasons for the delay, the Court was inclined to allow the filing of an appeal out of time, grounding this in the constitutional right to fair hearing under Article 50(1)
The Applicant attributed the delay to delivery of the Lower Court's judgment in its absence and without notice, a fact the Respondent disputed; neither party placed the Lower Court proceedings before the Court. The Court held that although no cogent reasons were given, the right to appeal is an appendage of the right to fair hearing secured under Article 50(1) of the Constitution, and was inclined to allow the appeal to be filed out of time.
Whether a stay of execution pending the intended appeal should issue
Stay of execution granted pending the intended appeal on condition that the entire decretal sum of Ksh.357,978.58 is deposited in the Lower Court within fourteen days, failing which the stay lapses
The Court balanced the Applicant's desire to ventilate the intended appeal against the Respondent's right to realize the decretal sum after years of litigation. It granted a stay pending hearing and determination of the intended appeal conditioned upon deposit of the entire decretal sum in the Lower Court within fourteen days, failing which the stay would automatically lapse.
Legal principles established
#- Where no period of appeal is specified in the written law, an appeal to the ELRC shall be filed within thirty days from the date the decision was delivered; and the proviso to Section 79G of the Civil Procedure Act permits admission of an appeal out of time upon satisfaction of the Court that there was good and sufficient cause
- The right to appeal is an appendage of the right to fair hearing secured under Article 50(1) of the Constitution
Court orders
#- 1.Leave granted to the Applicant to appeal out of time against the judgment delivered on 3rd September 2021 in Mombasa CM ELRC No. 318 of 2018
- 2.Memorandum of appeal and record of appeal to be filed contemporaneously within thirty days, failing which the leave shall automatically lapse
- 3.Stay of execution of the Lower Court's decree pending hearing and determination of the intended appeal on condition that the entire decretal sum of Ksh.357,978.58 be deposited in the Lower Court within fourteen days, failing which the stay shall automatically lapse
- 4.Costs of the application awarded to the Respondent
- On appeal from
- Senior Principal Magistrate's Court, Mombasa
- Mombasa CM-ELRC No. 318 of 2018
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya 2010; Rule 8(1) & (2) of the Employment and Labour Relations Court (Procedure) Rules 2016; Section 79G of the Civil Procedure Act; Sections 3A, Order 42 Rule 6, Order 22 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muravvej Holdings Ltd v Mwadzoya (Miscellaneous Case E060 of 2021) [2022] KEELRC 21 (KLR)", Case Analysis (2022). Mombasa ELRC Judicial Review/Stay Application arising from Mombasa CM-ELRC No. 318 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/21/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.