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ELRCAllowedNotice of Motion dated 13th October 2021 (ELRC No. 1 of 2018, Maseno - intended appeal)· [2022] KEELRC 1189 (KLR)
Ambayo v Maseno Mission Hospital & another (Miscellaneous Application E068 of 2021) [2022] KEELRC 1189 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#Kenya's Employment Court allowed a worker to appeal nearly two years late because her advocate's failure to file the appeal shouldn't punish her.
What this practically means
#Executive summary
#The Applicant, Anne Ambayo, moved the Employment and Labour Relations Court at Kisumu by Notice of Motion dated 13th October 2021 seeking leave to file an appeal out of time against the judgment of Hon. Yalwa PM at Maseno in ELRC No. 1 of 2018 delivered on 18th December 2019, together with an order that the annexed draft Memorandum of Appeal be deemed duly filed. She explained that she had instructed her former advocates, M/S Oburu Obwatinya and Company Advocates, to lodge an appeal; they obtained proceedings and prepared a memorandum of appeal which they gave her, leading her to believe the appeal had been filed, but it was never lodged. The Respondents opposed, arguing the delay of one year and eight months was inordinate under Section 79G of the Civil Procedure Act and Order 50 Rule 4 of the Civil Procedure Rules, that no sufficient reason was disclosed, and that the draft appeal disclosed no arguable grounds. The court framed a single issue: whether the application had merit. Applying Section 79G and the factors in Edith Gichungu Koine (length and reason for delay, prejudice, and arguability), the court held that counsel's mistake could amount to sufficient cause and should not be visited on the litigant, that the delay, though long, was not fatal in the circumstances, that the right of appeal is a constitutional right under Article 50(1), and that the draft memorandum raised arguable issues. The application was allowed: leave to appeal out of time was granted, the draft Memorandum of Appeal was deemed duly filed, and costs of the application were to abide the intended appeal.
Key legal issues
#01
Whether the Applicant should be granted leave to file an appeal out of time
Holding
Yes; the delay is explained by the previous advocate's failure to file the appeal, the draft memorandum raises arguable issues, and the Respondents would not suffer irreparable prejudice.
Reasoning
The court noted the appeal time expired under Section 79G but that sufficient cause exists where counsel's error caused the default. Applying the factors of length and reason for delay, prejudice to the respondent and arguability of the appeal, and informed by the constitutional right of access to justice under Article 50, the court found the draft memorandum arguable and deserving of a hearing on the merits.
p. 4
Legal principles established
#- A mistake of counsel in failing to file an appeal may amount to sufficient cause and should not be visited on an innocent litigant.
- The right of appeal is a constitutional right under Article 50(1) and cannot be limited; a party should be accorded an opportunity to appeal where the intended appeal is not frivolous.
- There is no fixed rule for what constitutes inordinate delay; it depends on the circumstances of each case.
Court orders
#- 1.The Applicant is granted leave to file an appeal out of time from the Judgment of Hon. Yalwa PM at Maseno delivered on 18th December, 2019, in ELRC No. 1 of 2018
- 2.The draft Memorandum of Appeal annexed to the application is deemed as duly filed
- 3.Costs of the application shall abide the intended appeal
- On appeal from
- Senior Principal Magistrate's Court at Maseno (Hon. Yalwa PM)
- ELRC No. 1 of 2018
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (admission of appeal out of time) and Article 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ambayo v Maseno Mission Hospital & another (Miscellaneous Application E068 of 2021) [2022] KEELRC 1189 (KLR)", Case Analysis (2022). Notice of Motion dated 13th October 2021 (ELRC No. 1 of 2018, Maseno - intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1189/eng@2022-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.