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ELRCDismissedMiscellaneous Application (as stated on the application dated 21/9/2021)· [2022] KEELRC 1048 (KLR)

Herbert Muchelule v Seneca East Africa Limited Formally Sentry Security Limited [2022] KEELRC 1048 (KLR)

Employment and Labour Relations Court
20 January 2022
1,041 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to extend time to appeal because the applicant filed no draft appeal and waited about three years.

What this practically means

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Executive summary

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The applicant, a former employee acting in person, sought extension of time to file a Notice of Appeal against a ruling delivered by Abuodha J. on 18 October 2019 in ELRC No. 274 of 2018, in which the claimant's suit was struck out as statutorily time-barred under Section 90 of the Employment Act, 2007. The applicant explained the delay of roughly two to three years by his lay status, lack of legal representation, difficulties accessing the court file requiring intervention of the Judiciary Ombudsman, and the COVID-19 pandemic. The respondent opposed through grounds of objection, contending no sufficient or cogent reasons justified the orders sought. Nduma J. held that the application was defective from the outset because the applicant filed no draft memorandum of appeal, a mandatory requirement per the Supreme Court in Nicholas Kiptoo Arap Salat v IEBC, as applied in Siaya ELC Misc Application No. 5 of 2021, since the draft enables the court to gauge prospects of success. The court further found the applicant had not demonstrated any prospects of success: the impugned ruling was founded on the claimant's own pleading that employment ran from 1 November 2005 to termination on 8 October 2010, while suit was filed on 7 March 2018, beyond the three-year limitation. Although sympathetic, the court held lack of representation was not a valid reason for the inordinate delay. The application was dismissed, but with no order as to costs in view of the applicant's personal circumstances.

Key legal issues

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01

Requirement of a draft memorandum of appeal in extension-of-time applications

Holding

The application fails because the applicant did not file a draft appeal, which is vital for the court to assess prospects of success at the outset

Reasoning

Relying on the Supreme Court's decision in Nicholas Kiptoo Arap Salat v IEBC, as quoted in Siaya ELC Misc Application No. 5 of 2021, the court held that a draft memorandum of appeal is a mandatory requirement in applications for extension of time, since it enables the court to determine whether the intended appeal is arguable.

p. 2
02

Absence of prospects of success in the intended appeal

Holding

The intended appeal has no prospects of success because the impugned ruling struck out the suit as time-barred under Section 90 of the Employment Act, 2007, the claim having been filed more than seven years after termination

Reasoning

The ruling under challenge found the claimant was employed from 1st November 2005 until termination on 8th October 2010, yet the suit was filed on 7th March 2018, well beyond the three-year limitation period under Section 90 of the Employment Act. The applicant did not demonstrate any arguable grounds against that finding.

p. 2
03

Explanation for the inordinate delay

Holding

Lack of legal representation and reliance on the Judiciary Ombudsman do not constitute a valid and reasonable explanation for a delay of about three years

Reasoning

The court acknowledged sympathy for the lay applicant who sought assistance from the Judiciary Ombudsman and cited COVID-19 difficulties, but held that being unrepresented is not a valid or reasonable cause for the extensive delay between the ruling of 18/10/2019 and the application of 21/9/2021.

p. 2

Legal principles established

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  • An applicant for extension of time to appeal out of time must annex a draft memorandum of appeal to demonstrate the intended appeal has prospects of success
  • Lack of legal representation is not a valid and reasonable cause for inordinate delay in seeking extension of time

Court orders

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  1. 1.The application dated 21/9/2021 is dismissed
  2. 2.No order as to costs, considering the personal circumstances of the applicant

Authorities

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Legislation

  • Court of Appeal RulesRule 75
  • Employment ActSection 90

Cases cited (2)

  • Dr James Ouko Okumbe versus Joshua Abongo Okumbe District Lands Registrar Bondo
    Siaya ELC Misc Application Case No 5 of 2021
  • Nicholas Kiptoo Arap Salat versus Independent Electoral and Boundaries Commission and 7 Others
Jurisdiction invoked
Court's discretion to extend time under Rule 75 of the Court of Appeal Rules (as invoked by the applicant); the judgment does not expressly cite the jurisdictional provision

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, "Herbert Muchelule v Seneca East Africa Limited Formally Sentry Security Limited [2022] KEELRC 1048 (KLR)", Case Analysis (2022). Miscellaneous Application (as stated on the application dated 21/9/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1048/eng@2022-01-20

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