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ELRCAllowedApplication dated March 31, 2022· [2023] KEELRC 497 (KLR)

H. Young Company (EA) Ltd v Mwangi (Miscellaneous Case . E055 of 2022) [2023] KEELRC 497 (KLR)

Employment and Labour Relations Court
23 February 2023
1,589 words in judgment
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The bottom line

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A Kenyan employment court allowed a late appeal despite an unexplained four-month delay, but only after ordering costs and security for the award.

What this practically means

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Executive summary

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The Applicant, the employer in Milimani CMEL Cause No 280 of 2018, applied by notice of motion dated March 31, 2022 for extension of time to file a memorandum of appeal against a judgment delivered in November 2021 in which the Respondent's dismissal was found unfair and compensation of two months' salary was awarded. The Applicant, through its legal officer Peace Mavindu, explained the delay by reference to attempted out-of-court settlement and a change of advocates. The Respondent, who filed submissions but no replying affidavit, relied on the Supreme Court's Salat principles and contended that the Applicant had not explained a delay of about four months, had shown no efforts to obtain proceedings, and had not laid an equitable basis. The Court, applying Salat and other authorities, reaffirmed that extension of time is not a right but an equitable, discretionary remedy requiring a laid basis. It found the Applicant indolent and unproven in its allegations of settlement attempts, but noted the memorandum of appeal raised bona fide arguable issues, and that under Articles 48 and 50 of the Constitution no party should be locked out of the corridors of justice. Weighing the Respondent's confessed financial inability to refund the decretal sum, the Court allowed the application on conditions: payment of Kshs 30,000 as costs within 25 days, deposit of the decretal sum in a joint interest-earning account in the names of both parties' advocates, and filing of the appeal within 30 days, failing which the extension elapses. Judgment delivered virtually in Nairobi on February 23, 2023 by Anna Ngibuini Mwaure, Judge.

Key legal issues

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01

Whether the Applicant was entitled to extension of time despite inordinate, unexplained delay

Holding

The Court found the Applicant indolent but nonetheless granted extension on conditions, holding the appeal raised bona fide arguable issues and the Respondent could be protected by conditions.

Reasoning

The Court applied the Salat principles, observing the Applicant gave no proof of settlement offers or efforts to obtain proceedings and filed the application some four months late. However, because the memorandum of appeal disclosed bona fide arguable issues, and because Articles 48 and 50 entitle each party to a fair hearing, the Court allowed the application subject to payment of costs to the Respondent and deposit of the decretal sum in a joint interest-earning account.

p. 3
02

Whether the Respondent's prejudice could be mitigated

Holding

The Court held prejudice could be compensated by damages but, given the Respondent's inability to refund the decretal sum, imposed conditions of payment of Kshs 30,000 and deposit of the decretal sum.

Reasoning

The Respondent had confessed in submissions that he was struggling financially, and the Court found that if he executed the decree he might be unable to refund the decretal sum should the appeal succeed. The Court balanced this against the constitutional right of access to justice and a fair hearing, conditioning the extension on payment of costs and deposit of the decretal sum in a joint interest-earning account in the advocates' names.

p. 4

Legal principles established

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  • Extension of time is not a right of a party but an equitable remedy available only to a deserving party at the discretion of the Court.
  • One who seeks extension of time must lay a basis that he was not at fault so as to let time lapse.

Court orders

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  1. 1.The respondent is paid Kshs 30,000/- as costs to be paid within 25 days from today's date
  2. 2.The decretal sum be deposited in a joint interest earning account in the names of the advocates of the appellant and of the respondent
  3. 3.Appeal to be filed within 30 days from today's date but subject to complying with prayers 1 and 2 above otherwise extension elapses

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
  • Appellate jurisdiction Rules (Rule 4)Rule 4

Cases cited (8)

  • Faustin Njeru Njoka vs Kimunye Tea Factory Limited
    (2022) eKLR
  • Nicholas Kiptoo Arap Korir vs Independent Electoral and Boundaries Commission & 7 others
    (2014) eKLR
  • Nicholas Kiptoo Salat vs Independent Electoral & Boundaries commissions & 7 others
    (2014) eKLR
  • Jayesh Hasmukh Shah vs Narin Haira & another
    (2015) eKLR
  • Njuguna Magichu & 73 others
    (2003) eKLR 507
  • Anthony Burugu & Company Advoctes vs Electrowatts Limited
    Civil Appeal No E441 of 2021
  • Nicholas Kiptoo Arap Salat vs The Independent Boundaries Commission & 7 Others
    Application No 16 of 2014
  • Paul Wanjohi Mathenge vs Duncan Gichane Mathenge
    (2013) eKLR
On appeal from
Milimani Chief Magistrate's Court (Employment and Labour Relations Cause)
CMEL Cause No 280 of 2018
Jurisdiction invoked
Discretion to extend time under Rule 4 (appellate practice rules) and Articles 48 and 50 of the Constitution of Kenya

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, "H. Young Company (EA) Ltd v Mwangi (Miscellaneous Case . E055 of 2022) [2023] KEELRC 497 (KLR)", Case Analysis (2023). Application dated March 31, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/497/eng@2023-02-23

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