Motrex Limited v Wanyonyi (Miscellaneous Application E038 of 2021) [2022] KEELRC 1403 (KLR)
The bottom line
#Kenya's Employment Court allowed a late employment appeal because the judgment was delivered without notice during Covid-19, but ordered the appealing party to pay the other side's costs.
What this practically means
#Executive summary
#Key legal issues
#Applicable framework for extension of time to appeal to the ELRC
The ELRC (Procedure) Rules 2016 are silent; the Court reverts to section 79G of the Civil Procedure Act, which permits admission of an appeal out of time on good and sufficient cause.
The Court noted its rules do not address enlargement of time for appeals from subordinate courts, and its practice is to apply the Civil Procedure Act and Rules. Section 79G fixes thirty days but its proviso allows late admission where good and sufficient cause is shown. As a court of equal status with the High Court under Article 162(2)(a), the same regime governs ELRC appeals.
Whether good and sufficient cause was demonstrated
Yes - the judgment was delivered on 16th June 2020 in the absence of the parties and without notice, amid Covid-19 scaled-down operations, and nothing showed the Applicant knew of it within thirty days.
The judgment was initially scheduled for 19th March 2020 but the court did not sit due to Covid-19; it was ultimately delivered on 16th June 2020 in the parties' absence in mitigation of Covid-19 effects. The Applicant learned of it on 11th August 2020 when served with a decree and demand notice. The Respondent did not deny these facts, and the Court took judicial notice of the pandemic's disruption of court operations.
Arguability of the intended appeal and absence of prejudice
The intended challenge to findings on legality and fairness of termination and the awards is arguable; the decretal sum having been deposited in court, the Respondent suffers no prejudice.
The draft memorandum of appeal targets the lower court's findings on legality and fairness of termination and the awards, issues that are not frivolous. The decretal sum of Ksh. 316,372 was deposited in the lower court on 12th March 2021 as a condition for stay of execution, a fact not disputed by the Respondent, so security of the decree neutralises any prejudice.
Legal principles established
#- Appeals from subordinate courts to the ELRC must be filed within thirty days, and a party seeking admission out of time must show good and sufficient cause; where the ELRC Rules are silent, the Civil Procedure Act and Rules apply.
Court orders
#- 1.The Applicant is granted leave to appeal against the lower Court's judgment in Mombasa CMC ELR Case No. 265 of 2019, delivered on 16th June 2020, out of time
- 2.The Applicant shall file and serve a memorandum of appeal together with a complete record of appeal within thirty days of the Ruling, failing which the leave shall lapse and execution shall issue on the lower Court's decree
- 3.Costs of the application are awarded to the Respondent, to be agreed or taxed
- On appeal from
- Mombasa Chief Magistrate's Court (ELR Cause)
- CMC ELR Cause No. 265 of 2019
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya 2010; Section 79G of the Civil Procedure Act applied by practice where ELRC Procedure Rules 2016 are silent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Motrex Limited v Wanyonyi (Miscellaneous Application E038 of 2021) [2022] KEELRC 1403 (KLR)", Case Analysis (2022). ELR Appeal arising from Mombasa CMC ELR Cause No. 265 of 2019 (Notice of Motion dated 6th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1403/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.