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ELRCDismissedNakuru CM ELRC Cause No. 40 of 2020 (Miscellaneous Civil Application, Notice of Motion dated 4th May 2022)· [2023] KEELRC 138 (KLR)

Jubilee Insurance Company Limited v Nangira (Employment and Labour Relations Appeal E008 of 2022) [2023] KEELRC 138 (KLR)

Employment and Labour Relations Court
26 January 2023
2,505 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Jubilee Insurance lost its bid to appeal a ruling out of time because it never showed the appeal had any real chance of success.

What this practically means

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Executive summary

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Jubilee Insurance Company Limited (Applicant) moved the Employment and Labour Relations Court at Nakuru by Notice of Motion dated 4th May 2022 seeking stay of proceedings in Nakuru CMCC 40 of 2020 (Maxwell Ogeng'o Nangira v Jubilee Insurance Company Limited) and leave to appeal out of time against a ruling of Hon. K.I. Orenge (PM) delivered 16th February 2022, which dismissed the Applicant's application seeking striking out of the statement of claim, stay of proceedings and reference to arbitration. The Applicant attributed the delay to counsel's sickness and an ongoing merger with Allianz SE. The Respondent opposed, citing failure to extract a formal order, inordinate delay, and lack of authority of the deponent Patience Mirara. The court found the delay of under two months not inordinate and counsel's sickness a genuine reason, but held the Applicant had denied the court the ability to assess prospects of success: no defence had been filed in the lower court and the contract allegedly containing an arbitration clause was never availed. Leave to appeal out of time was therefore refused, and the consequential prayer for stay of proceedings also failed as prejudicial to the Respondent. The authority objection was rejected, the matter being a miscellaneous application outside Order 4 Rule 1. The court also noted the application was mislabelled as an appeal when no appeal existed. The application was dismissed in its entirety with costs to the Respondent. Judgment delivered virtually at Nakuru on 26th January 2023 by David Nderitu, Judge.

Key legal issues

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01

Whether leave to appeal out of time should be granted

Holding

Leave refused; the delay of less than two months was not inordinate and the counsel's sickness a genuine reason, but the Applicant failed to demonstrate prospects of success

Reasoning

The court applied the cumulative factors in Leo Sila Mutiso. Though the delay and reasons were acceptable, the Applicant neither filed a defence nor availed the contract alleged to contain an arbitration clause, leaving the court unable to assess the likelihood of the intended appeal succeeding.

p. 5
02

Whether proceedings in the lower court should be stayed pending the intended appeal

Holding

Stay refused as it is consequential on the refused extension of time and would prejudice the Respondent

Reasoning

Since leave to appeal out of time was denied, there is no viable intended appeal to protect. The court also held the Respondent's claim should proceed to hearing and determination on merits without hindrance.

p. 5
03

Whether the supporting affidavit was invalid for want of the deponent's authority

Holding

Objection rejected; the matter is a miscellaneous application, not a cause invoking Order 4 Rule 1, and the objection is best raised in the lower court

Reasoning

Counsel submitted at length on authority of the deponent, Patience Mirara. The court held that Order 4 Rule 1 of the Civil Procedure Rules was not invoked because the matter is properly a miscellaneous application, not an appeal or proper cause.

p. 5

Legal principles established

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  • Factors for extension of time include length of delay, reasons for delay, chances of appeal succeeding, prejudice to the respondent, and public interest
  • A party seeking extension of time must place before the court material enabling assessment of the prospects of success of the intended appeal

Court orders

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  1. 1.The application by the Applicant dated 4th May, 2022 be and is hereby dismissed with costs to the Respondent.

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 4 Rule 1

Cases cited (2)

  • Leo Sila Mutiso V Hellen Wangari Mwangi
    (1999) 2 EA 231
  • Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & Another
    (2018) eKLR
Jurisdiction invoked
Inherent discretion of the Employment and Labour Relations Court to extend time and stay proceedings; Civil Procedure Act (Section 79G) and Civil Procedure Rules referenced

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, "Jubilee Insurance Company Limited v Nangira (Employment and Labour Relations Appeal E008 of 2022) [2023] KEELRC 138 (KLR)", Case Analysis (2023). Nakuru CM ELRC Cause No. 40 of 2020 (Miscellaneous Civil Application, Notice of Motion dated 4th May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/138/eng@2023-01-26

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