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ELRCPartially AllowedNot stated in the judgment (arises from Kakamega Civil Suit No 328 of 2016)· [2023] KEELRC 486 (KLR)

Mbayi v Kibos & Allied Industries Limited & another (Employment and Labour Relations Miscellaneous E023 of 2022) [2023] KEELRC 486 (KLR)

High Court of Kenya
23 February 2023
JKJ. W. Keli
2,014 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma High Court allowed a late appeal where the litigant never received notice of the judgment date, but made him pay the other side's costs.

What this practically means

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Executive summary

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The applicant, who was the plaintiff in Kakamega Civil Suit No 328 of 2016, brought a Notice of Motion dated December 2, 2022 under section 79G of the Civil Procedure Act, Order 50 Rule 6 and Order 40 Rule 1 of the Civil Procedure Rules seeking leave to appeal out of time against a judgment delivered by the magistrate's court on October 19, 2022. The application was opposed by the respondents through grounds of opposition and written submissions, while the applicant relied on the supporting affidavit. The issue was whether the applicant had good and sufficient cause for not filing the appeal within the statutory thirty days. The applicant explained that judgment had been scheduled for July 5, 2022 by consent, was not delivered, and no notice of the eventual delivery date was given; counsel learned of the judgment from the court clerk on November 22, 2022. The respondents contended there was no sufficient cause, that notice had been issued via the judiciary e-filing kiosk for October 18, 2022, and that the intended appeal was unarguable because under the Supreme Court's decision in Law Society of Kenya v Attorney General (Petition No 4 of 2019) post-WIBA matters fall under the Director of Occupational Safety and Health Services. Applying Leo Sila Mutiso and Thuita Mwangi v Kenya Airways, the court held the delay was explained by non-communication of the delivery date and the two-week post-awareness delay was not inordinate; arguability was not an obligatory consideration. The court agreed WIBA jurisdiction lies with DOSHS but declined to lock the applicant out of the appeal, citing Butt v Rent Restriction Tribunal. The application was allowed with leave to appeal out of time, with the applicant to pay the respondents' costs of the application.

Key legal issues

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01

Good and sufficient cause under section 79G of the Civil Procedure Act

Holding

Non-communication of the judgment delivery date by the magistrate's court constituted good and sufficient cause; the two-week delay after learning of the judgment was not inordinate

Reasoning

The scheduled judgment date of July 5, 2022 was vacated and a notice allegedly issued through the judiciary e-filing public kiosk system for October 18, 2022, which date was also vacated. There was no evidence the delivery date was communicated to the plaintiff. Counsel discovered the judgment on November 22, 2022 and the application followed within about two weeks, which the court found not inordinate.

p. 4
02

Whether arguability of the intended appeal must be established

Holding

Arguability is only a possible consideration; the court was not obliged to assess the merits and declined to lock out the parties from appealing even while agreeing that WIBA jurisdiction lies with DOSHS

Reasoning

Following Thuita v Kenya Airways, the court held the Mutiso factors are not mandatory as to merits. Although it accepted the Supreme Court's holding in Law Society of Kenya v Attorney General that post-WIBA matters fall to the Director of Occupational Safety and Health Services, it exercised the discretion so as not to prevent the appeal.

p. 4

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
  • The decision whether or not to extend time for appealing is discretionary and turns on the length of and reason for the delay; the chances of the appeal succeeding are only a possible consideration, not an obligatory one
  • Discretion on extension of time should be exercised so as not to prevent an appeal

Court orders

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  1. 1.The applicant is granted leave to appeal out of time against the judgment of the magistrate court delivered on the October 19, 2022 in Kakamega Civil Suit No 328 of 2016
  2. 2.The applicant to pay the respondents costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 40 Rule 1
  • Work Injury Benefits Act (WIBA)Not specified in the judgment

Cases cited (6)

  • Caltex Oil (Kenya) Limited v Rono Limited
    (2016)
  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors
    (1969) EA 696
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    (Civil Application No Nai 255 of 1997) (1999) 2 EA
  • Thuita Mwangi v Kenya Airways Ltd
    [2003] eKLR
  • Law Society of Kenya v Attorney General
    Petition No 4 of 2019
  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules (application for leave to appeal out of time to the High Court from a subordinate court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mbayi v Kibos & Allied Industries Limited & another (Employment and Labour Relations Miscellaneous E023 of 2022) [2023] KEELRC 486 (KLR)", Case Analysis (2023). Not stated in the judgment (arises from Kakamega Civil Suit No 328 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/486/eng@2023-02-23

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