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ELRCDismissedELRC Appeal filed 27th April 2021 (memorandum of appeal dated 19th April 2021)· [2022] KEELRC 1457 (KLR)

Mombasa Aviation Training Institute v Charles Maina Joseph (Appeal E026 of 2021) [2022] KEELRC 1457 (KLR)

Employment and Labour Relations Court
9 June 2022
1,968 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 appeal filed 54 days late was dismissed because 'inadvertence' alone does not excuse missing the 30-day appeal deadline.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa, delivered by Agnes Kitiku Nzei J on 9th June 2022, determined two cross-applications arising from an appeal against an ex-parte judgment of Hon. F. Nabibya SRM delivered on 4th March 2021 in Mombasa ELR Case No. 102 of 2019. The memorandum of appeal was filed on 27th April 2021, 54 days after the judgment, without any lower court record or certificate of delay. The Court held that under Rule 8(2) of the ELRC (Procedure) Rules 2016 and Section 79G of the Civil Procedure Act, appeals must be lodged within thirty days, so the appeal was out of time, filed without leave, and statute-barred. The Appellant's application of 14th January 2022 for enlargement of time, leave to appeal and admission of the memorandum was dismissed: the Appellant merely alleged inadvertence without disclosing its nature or quality, produced no lower court proceedings or judgment to establish the arguability of the intended appeal, and the Respondent had already paid the full decretal sum, so costs could not compensate the resulting prejudice. The Respondent's application of 13th September 2021 to dismiss the appeal was allowed and the appeal dismissed with costs. The ruling reiterates that a meritorious appeal cannot rescue an unexplained inordinate delay, and that where there is no explanation there shall be no indulgence.

Key legal issues

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01

Whether the appeal was filed out of time

Holding

Yes - filed 54 days after the judgment, well beyond the 30-day period under Rule 8(2) ELRC Procedure Rules and Section 79G Civil Procedure Act, hence statute-barred

Reasoning

The judgment appealed against was delivered on 4th March 2021 and the memorandum of appeal filed on 27th April 2021, 54 days later. No certificate of delay from the lower court was produced to exclude any period. Under Rule 8(2) and Section 79G the limit is thirty days, so the appeal was filed out of time without leave and is statute-barred.

p. 2
02

Whether extension of time and admission of the appeal should be granted

Holding

No - the Appellant gave no explanation for the delay, the merits could not be assessed absent the lower court record, and the Respondent had already paid the decretal sum and would be prejudiced

Reasoning

An applicant must demonstrate good or sufficient cause; mere assertion of inadvertence without disclosing its nature and quality is insufficient. The Appellant also failed to place the lower court proceedings or judgment before the Court, making the merits of the intended appeal unascertainable. The Respondent had already satisfied the decree, so costs could not compensate the prejudice of reviving the matter.

p. 4

Legal principles established

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  • An appeal to the ELRC from a subordinate court must be filed within thirty days of the decision unless a different period is specified in written law
  • An applicant for extension of time must show good and sufficient cause, and the nature and quality of any inadvertence must be disclosed; mere failure to act is not sufficient cause
  • Where there is no explanation for non-compliance, the court will not exercise its discretion in favour of the defaulting party

Court orders

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  1. 1.The Notice of Motion dated 14th January 2022 is dismissed with costs
  2. 2.The Notice of Motion dated 13th September 2021 is allowed and the appeal is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 8(1) and (2)
  • Civil Procedure ActSection 79G (including proviso)
  • Constitution of Kenya 2010Article 162(2)(a)

Cases cited (7)

  • Feroz Begum Qureshi & Another v Maganbhai Patel & Others
    [1964] E.A. 633
  • Daphine Parry –vs– Murray Alexander Carson
    [1963] E.A. 546
  • First American Bank Of Kenya Ltd v Gulab P. Sha & 2 Others
    [2002] IEA 65
  • Dilpack Kenya Limited v Wiliam Muthama Kitonyi
    [2018]
  • Itute Ngui & Another vs– Ismail Mwakavi Mwendwa
    Court of Appeal Civil Application No. 166 of 1997
  • Ratman –vs– Cumarasamy
    [1964] 3 All ER 933
  • Avil –vs– Southend Health Authority
    [1995] 1 WLR 124 at 1259
On appeal from
Senior Resident Magistrate's Court (Employment and Labour Relations), Mombasa
Mombasa ELR Case No. 102 of 2019
Jurisdiction invoked
Article 162(2)(a) of the Constitution; Section 79G of the Civil Procedure Act; Rule 8(1) and (2) of the Employment and Labour Relations Court (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, "Mombasa Aviation Training Institute v Charles Maina Joseph (Appeal E026 of 2021) [2022] KEELRC 1457 (KLR)", Case Analysis (2022). ELRC Appeal filed 27th April 2021 (memorandum of appeal dated 19th April 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1457/eng@2022-06-09

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