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ELRCDismissedCMCC No. 1760 of 2016 (intended appeal)· [2022] KEELRC 71 (KLR)

Chandaria Industries Limited v Masisa (Miscellaneous Civil Application E059 of 2021) [2022] KEELRC 71 (KLR)

Employment and Labour Relations Court
9 June 2022
1,841 words in judgment
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The bottom line

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A Kenyan court refused to extend time to appeal because the applicant hid settlement talks and offered no security, so the Kshs 470,590 judgment stands.

What this practically means

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Executive summary

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The Applicant, whose claim was handled by Kenindia Assurance Company Limited's legal officer, sought leave to lodge an appeal out of time against a judgment of the Chief Magistrate's Court, Commercial Division at Milimani, delivered on 4th December 2020 in CMCC No. 1760 of 2016, awarding the Respondent Kshs 325,000 (with interest raising the decretal sum to Kshs 470,590.15) for injuries sustained in the course of employment. The Applicant also sought a stay of execution pending the intended appeal. The application, transferred to the Employment and Labour Relations Court by Sergon J., was opposed on grounds of inordinate delay, non-disclosure that the parties had agreed on costs, and settled willingness to pay the decretal sum. A similar application dated 26th November 2021 was heard together. Applying Section 76G of the Civil Procedure Act, Rule 8 of the ELRC (Procedure) Rules, 2016, and the Supreme Court's Salat principles, the Court held the applicant had not discharged the onus of demonstrating good and sufficient cause for the delay. The applicant concealed ongoing settlement correspondence and attributed delay to oversight by the insurer's legal officer, who was not a party. The jurisdictional objection against the magistrate's court was noted but not determined, being tenuous amid divergent interpretations of the Supreme Court's 2019 WIBA judgment. The Respondent would suffer substantial prejudice given the suit's four-year history. Both applications were dismissed with costs to the Respondent.

Key legal issues

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01

Extension of time to file an appeal out of time

Holding

The applicant did not discharge the onus of establishing good and sufficient cause for the delay; the application was dismissed

Reasoning

The Court applied the Salat principles on extension of time. The appeal ought to have been filed within 30 days of the 4th December 2020 judgment. The applicant attributed the delay to oversight by the insurer's legal officer while concealing that it was engaged in correspondence settling costs. The insurer was not a party to the suit. The delay would greatly prejudice the respondent, and no security was offered.

p. 4
02

Whether the magistrates' court lacked jurisdiction over the WIBA claim

Holding

The jurisdictional objection was tenuous; the court declined to determine it at that stage

Reasoning

The jurisdiction issue was not raised before the magistrate and both parties submitted to the court's jurisdiction. The court noted divergent interpretations of the Supreme Court's 2019 judgment on WIBA matters, making it difficult to determine whether suits were properly before the magistrates' courts depending on their filing dates.

p. 4

Legal principles established

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  • An appeal may be admitted out of time if the appellant satisfies the Court that he had good and sufficient cause for not filing the appeal
  • Under Rule 8 of the ELRC (Procedure) Rules, 2016, where no period of appeal is specified, an appeal shall be filed within thirty days from the date the decision was delivered

Court orders

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  1. 1.The applications dated 12th February, 2021 and 26th November, 2021 are dismissed
  2. 2.Costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 76G
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 8
  • Work Injury Benefits Act No. 13 of 2007Section 52

Cases cited (1)

  • Nicholas Kiptoo Korir Arap Salat –vs- Independent and Electoral Boundaries Commission and 7 Others
    2014 eKLR
On appeal from
Chief Magistrate's Court, Commercial Courts at Milimani
CMCC No. 1760 of 2016
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 8; Section 76G of the Civil Procedure Act

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, "Chandaria Industries Limited v Masisa (Miscellaneous Civil Application E059 of 2021) [2022] KEELRC 71 (KLR)", Case Analysis (2022). CMCC No. 1760 of 2016 (intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/71/eng@2022-06-09

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