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ELRCAllowedNot stated in extract (Application dated 25th October 2021, arising from an intended Appeal from MCERC No. 1444 of 2019)· [2022] KEELRC 624 (KLR)

University of Nairobi v Bernard Nyamai Ileve [2022] KEELRC 624 (KLR)

Employment and Labour Relations Court
3 March 2022
460 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 University of Nairobi appeal late and paused the KSh 1.9M award, because it acted promptly and showed an arguable appeal.

What this practically means

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Executive summary

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The University of Nairobi (Applicant) applied to the Employment and Labour Relations Court at Mombasa for leave to appeal out of time and stay of execution of the judgment and decree of the Chief Magistrate's Court at Nairobi in MCERC No. 1444 of 2019, Bernard Nyamai Ileve v. University of Nairobi, delivered on 30th August 2021. The trial court had awarded the Respondent gratuitous pay of Kshs. 1,927,930, with costs and interest at court rates from the date of filing. The Applicant, through an affidavit of its advocate Donald B. Kipkorir, explained that it requested a copy of the judgment on the day of delivery but only received it on 11th October 2021, and lodged the application on 26th October 2021. It relied on an exhibited draft memorandum of appeal to show arguability. The court granted a temporary stay at the interlocutory stage and directed the exchange of written submissions, which the parties confirmed on 14th December 2021. Delivering its ruling on 3rd March 2022, James Rika, Judge, held that the Applicant had moved the court within a reasonable time of obtaining the judgment; that the draft memorandum disclosed an arguable appeal with reasonable chances of success; and that, since the trial suit proceeded on written pleadings under Rule 21 of the E&LRC (Procedure) Rules, 2016, the record of appeal would be prepared quickly and the Respondent would suffer no prejudice from prolonged delay. The court granted leave to file the appeal out of time, deemed the annexed memorandum of appeal properly filed upon payment of the requisite fees, stayed the judgment and decree pending determination of the appeal, and awarded costs in the appeal.

Key legal issues

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01

Reasonable time for lodging an application for extension of time

Holding

The delay was reasonable because the Applicant applied for the judgment copy immediately upon delivery and lodged the application shortly after receiving it

Reasoning

The Court found the Applicant applied for a copy of the Judgment on the date of delivery, was supplied only on 11th October 2021, and filed the application on 26th October 2021. Measured from receipt of the judgment rather than delivery, the Applicant acted within a reasonable time.

p. 1
02

Arguability of the intended appeal

Holding

The draft Memorandum of Appeal exhibited disclosed an arguable appeal with reasonable chances of success

Reasoning

The Court examined the exhibited Draft Memorandum of Appeal and was satisfied it raised arguable issues with reasonable chances of success, a standard threshold for granting leave and stay. The Court did not require the appeal to be certain to succeed.

p. 1
03

Prejudice to the Respondent if stay is granted

Holding

No prejudice would ensue because the suit proceeded on written pleadings under Rule 21, so the record of appeal would be prepared quickly and the appeal heard within a reasonable time

Reasoning

The Court considered the procedural history: the trial suit proceeded under Rule 21 of the E&LRC Procedure Rules, 2016, without prolonged oral proceedings, meaning the Record of Appeal could be compiled expeditiously. The Respondent therefore faced no risk of prolonged delay or prejudice in processing and hearing the appeal.

p. 1

Legal principles established

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  • An applicant for extension of time who promptly requested a copy of the judgment and moved the court within a reasonable time of obtaining it satisfies the reasonable-delay requirement.
  • An arguable appeal, disclosed through a draft memorandum of appeal, supports both extension of time and stay pending appeal.

Court orders

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  1. 1.The Applicant is granted leave to file Appeal out of time.
  2. 2.The Memorandum of Appeal annexed to the Application shall be deemed properly filed, upon payment of the requisite court fees.
  3. 3.Judgment and/or Decree of the Trial Court is stayed, pending hearing and determination of the Appeal.
  4. 4.Costs in the Appeal.

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 21
On appeal from
Chief Magistrate’s Court at Nairobi
MCERC No. 1444 of 2019
Jurisdiction invoked
Appellate/supervisory jurisdiction of the Employment and Labour Relations Court over appeals from the subordinate court; Suit before the Trial Court proceeded under Rule 21 of the E&LRC [Procedure] Rules, 2016

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, "University of Nairobi v Bernard Nyamai Ileve [2022] KEELRC 624 (KLR)", Case Analysis (2022). Not stated in extract (Application dated 25th October 2021, arising from an intended Appeal from MCERC No. 1444 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/624/eng@2022-03-03

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