Wamukobole v Dawida Maternity Nursing Home (Miscellaneous Application E069 of 2022) [2023] KEELRC 294 (KLR)
The bottom line
#Kenya's Employment Court allowed an appeal filed 8 days late because a lawyer's honest diary mistake was excusable and nobody was actually hurt by the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether counsel's inadvertent misdiarisation of the filing date constituted good and sufficient cause under the proviso to Section 79G of the Civil Procedure Act
Counsel's inadvertent error resulting in an 8-day delay was excusable and amounted to sufficient cause for extension of time.
The court applied Rule 8 of the ELRC Procedure Rules 2016 and Section 79G of the Civil Procedure Act, and the factors in First American Bank of Kenya Ltd v Gulab P. Shah: explanation for delay, merits of the contemplated appeal, and prejudice to the Respondent. Counsel's mistake was inadvertent misdiarisation discovered on 10th October 2022, with the application filed on 14th October 2022, a delay of only 8 days. Authorities confirm that a legal advisor's bona fide mistake may amount to sufficient cause where the delay is not inordinate.
Whether the intended appeal was arguable and whether the Respondent would suffer prejudice
The grounds of appeal were arguable and not frivolous, and the Respondent did not demonstrate any prejudice if the orders were granted.
The court perused the draft memorandum of appeal and found the intended grounds arguable and deserving of a day in court. It further found the period of delay not inordinate and noted that the Respondent had not demonstrated any prejudice it would suffer if extension was granted. This aligned with the second and third factors in First American Bank of Kenya Ltd v Gulab P. Shah, warranting a favourable exercise of discretion.
Legal principles established
#- An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
- Mistakes of a legal advisor may amount to sufficient cause for extension of time, provided the delay is not inordinate.
- Where no period of appeal is specified in the written law, an appeal to the Employment and Labour Relations Court shall be filed within thirty days from the date the decision was delivered.
Court orders
#- 1.The Applicant is granted leave to appeal against the whole judgment of the Senior Resident Magistrate's Court Voi in ELR Case No. E015 of 2021 delivered on 6th September 2022 out of time
- 2.A memorandum of appeal and a record of appeal shall be filed contemporaneously within thirty days of the Ruling and served within the said period
- 3.Costs of the application shall be in the appeal
- On appeal from
- Senior Resident Magistrate's Court, Voi
- ELR Case No. E015 of 2021
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya 2010; proviso to Section 79G of the Civil Procedure Act; Rule 8(1) and (2) of the Employment and Labour Relations Court (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wamukobole v Dawida Maternity Nursing Home (Miscellaneous Application E069 of 2022) [2023] KEELRC 294 (KLR)", Case Analysis (2023). Notice of Motion dated 14th October 2022 (arising from Voi ELR Case No. E015 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/294/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.