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ELRCAllowedELRC No 91 of 2020 (Eldoret CMELRC, appeal reference)· [2023] KEELRC 39 (KLR)

Raiply Woods (K) Limited v Wekesa (Employment and Labour Relations Appeal E022 of 2022) [2023] KEELRC 39 (KLR)

Employment and Labour Relations Court
20 January 2023
AJAbuodha Nelson Jorum
1,530 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 in Eldoret allowed an employer to appeal late because a lost court file explained the delay, but ordered the full award money deposited first.

What this practically means

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Executive summary

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The Applicant, the intended appellant, moved the Employment and Labour Relations Court at Eldoret by Notice of Motion dated April 28, 2022 seeking extension of time to file and serve a memorandum of appeal against the judgment of Hon C Menya delivered on March 18, 2022 in Eldoret CM ELRC No 91 of 2020, in which the Respondent (then claimant) was held to have been unlawfully terminated and awarded Kshs 268,334.04. The Applicant sought leave to appeal out of time, that the memorandum of appeal dated April 20, 2022 be deemed properly filed and served, and that its stay application be deemed properly on record. The Respondent opposed, contending the delay of over two months was inordinate and inexcusable, that no deposit had been paid to facilitate typing of proceedings, and that a successful litigant should enjoy the fruits of his judgment per Section 79G of the Civil Procedure Act. The court framed a single issue: whether sufficient cause had been shown for leave to appeal out of time. Applying Section 79G and the principles in Leo Sila Mutiso vs Rose Hellen Wangari Mwangi and Raila Odinga vs IEBC, the court accepted that the loss of the trial court's file explained the delay, found the application brought without undue delay and the proposed appeal arguable, and exercised its discretion under Section 3A in the applicant's favour. The application was allowed: leave to appeal out of time was granted, the memorandum of appeal deemed duly filed and served, and a conditional stay of execution issued requiring deposit of the entire decretal sum in an interest-earning account in the joint names of counsel within 30 days. Costs were made costs in the appeal.

Key legal issues

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01

Whether sufficient cause exists for extension of time to file an appeal out of time

Holding

The court was satisfied that the loss of the trial court's file was a good and reasonable explanation for the delay, the application was brought without undue delay, and the proposed appeal was arguable; the discretion was exercised in the applicant's favour.

Reasoning

The judgment was delivered on March 18, 2022 and the application filed on April 28, 2022, roughly one and a half months later. The applicant attributed the delay to the loss of the trial court's file, having made follow-ups until April 20, 2022 when a copy of the judgment was availed. Applying the Leo Sila Mutiso factors, the court found the explanation reasonable, the application timely, and the draft memorandum arguable, and exercised its discretion under Section 3A of the Civil Procedure Act in the interest of justice.

p. 4

Legal principles established

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  • In deciding whether to grant an extension of time, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • Procedural prescriptions should not trump the primary object of dispensing substantive justice; the court must appreciate all relevant circumstances of the particular case.

Court orders

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  1. 1.The applicant is granted leave to appeal out of time
  2. 2.The Memorandum of Appeal dated April 20, 2022 is deemed duly filed and served
  3. 3.Conditional stay of execution: the entire decretal sum shall be deposited in an interest-earning account in the names of both counsel within 30 days
  4. 4.Costs shall be costs in the Appeal

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)(d)
  • Employment and Labour Relations Court ActSections 3 and 20(1)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 8
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
  • Raila Odinga vs Independent Electoral and Boundaries Commission & 4 Others
    [2013] eKLR
On appeal from
Chief Magistrate's Court at Eldoret (ELRC)
CM ELRC No 91 of 2020
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya 2010; Sections 3 and 20(1) of the Employment and Labour Relations Court Act; Rule 8 of the Employment and Labour Relations Court (Procedure) Rules 2016; Sections 79G and 3A of the Civil Procedure Act

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, "Raiply Woods (K) Limited v Wekesa (Employment and Labour Relations Appeal E022 of 2022) [2023] KEELRC 39 (KLR)", Case Analysis (2023). ELRC No 91 of 2020 (Eldoret CMELRC, appeal reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/39/eng@2023-01-20

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