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ELRCAllowedNotice of Motion dated 14th October 2022 (arising from Voi ELR Case No. E015 of 2021)· [2023] KEELRC 294 (KLR)

Wamukobole v Dawida Maternity Nursing Home (Miscellaneous Application E069 of 2022) [2023] KEELRC 294 (KLR)

Employment and Labour Relations Court
2 February 2023
1,557 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 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

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Executive summary

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This was a ruling of the Employment and Labour Relations Court at Mombasa (Agnes Kitiku Nzei, J) delivered on 2nd February 2023 on the Applicant's Notice of Motion dated 14th October 2022. The Applicant sought leave to appeal out of time against the whole judgment of the Senior Resident Magistrate's Court at Voi in ELR Case No. E015 of 2021, delivered on 6th September 2022, dismissing the Applicant's claim, together with an order deeming the annexed memorandum of appeal duly filed and served. The Applicant's counsel explained that he inadvertently noted 16th October 2022 instead of 6th October 2022 as the filing deadline, discovering the error on 10th October 2022, resulting in an 8-day delay. The Respondent opposed, arguing the claim had only been allowed in part, that a settlement cheque was declined, that the delay was unexplained and inordinate, and that there was no arguable appeal. The court held that under Rule 8 of the ELRC Procedure Rules 2016 and Section 79G of the Civil Procedure Act, an appeal could be admitted out of time on good and sufficient cause. Applying First American Bank of Kenya Ltd v Gulab P. Shah and authorities holding that a legal advisor's bona fide mistake may amount to sufficient cause, the court found the grounds of appeal arguable, the delay not inordinate, and no prejudice demonstrated by the Respondent. The application was allowed: leave to appeal out of time was granted, the memorandum and record of appeal were to be filed contemporaneously and served within thirty days, with costs of the application in the appeal.

Key legal issues

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01

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

Holding

Counsel's inadvertent error resulting in an 8-day delay was excusable and amounted to sufficient cause for extension of time.

Reasoning

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.

p. 3
02

Whether the intended appeal was arguable and whether the Respondent would suffer prejudice

Holding

The grounds of appeal were arguable and not frivolous, and the Respondent did not demonstrate any prejudice if the orders were granted.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs of the application shall be in the appeal

Authorities

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Legislation

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

Cases cited (6)

  • First American Bank of Kenya Ltd -vs- Gulab P. Shah & others
    [2002] 1EA 65
  • Dilpack Kenya Limited -vs- William Muthama Kitonyi
    [2018] eKLR
  • Ratman -vs- Cumarasamy
    [1964] 3 ALL ER 933
  • Itute Ngui -vs- Mwakavi Mwendwa
    Civil Application No. 166 of 1997
  • Belinda Mural & 9 others -vs- Amos Wainaina
    [1978] eKLR
  • Haman Singh & Others -vs- Mistri
    [1971] E.A 122
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

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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, "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.