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ELRCAllowedMiscellaneous Application dated February 6, 2023 (Bungoma High Court)· [2023] KEELRC 764 (KLR)

Wambasi v Frodak Kenya Limited & another (Miscellaneous Application E002 of 2023) [2023] KEELRC 764 (KLR)

High Court of Kenya
23 March 2023
JKJemimah Keli
1,149 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's High Court let an employee appeal late because a typing error, not neglect, left her case out of an earlier successful application.

What this practically means

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Executive summary

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The Applicant sought leave under Section 79G of the Civil Procedure Act to appeal out of time against a ruling of Hon. Josephine Maragia delivered on June 27, 2022 in Kakamega CM ELR Cause No 90 of 2020, in which the trial magistrate upheld a preliminary objection on territorial jurisdiction and struck out the suit with costs. The application explained that counsel handling the matter was on maternity leave when the ruling was delivered, and that the matter was part of a series of causes (Kakamega ELRC Nos 48, 78, 53, 55 and 52 of 2020) in which leave to appeal out of time had already been granted in Bungoma HC ELRC Misc Application No E014 of 2022 on December 2, 2022, but Cause No 90 of 2020 was inadvertently omitted by a typing error. Both respondents opposed, contending the eight-month delay was unexplained and prejudicial, and that the application was an abuse of process. The court held that the issues, parties and arguments were identical to those in the earlier application in which leave had been granted, that the same ruling applied to Cause No 90 of 2020, and that it would be duplicative to consider the matter afresh. The court adopted its earlier decision as its decision in this application, granted leave to appeal and to file and serve the Notice of Appeal and memorandum of appeal out of time, awarded costs of the application to the respondents, and directed that the Record of Appeal, including a fresh memorandum of appeal, be filed within 30 days with submissions, with mention on April 25, 2023 to confirm compliance.

Key legal issues

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01

Whether the delay in filing the appeal was excusable under Section 79G

Holding

Yes - the matter was inadvertently omitted from an earlier successful application for leave to appeal out of time concerning a series of suits struck out by the same ruling, so the Applicant benefits from that earlier grant.

Reasoning

The court noted that its own ruling in Bungoma ELRC Misc Application No E014 of 2022 granted leave to appeal out of time against the ruling of Hon. Josephine Maragia of June 27, 2022 in Kakamega MC ELRC Causes Nos 48, 78, 53, 55 and 52 of 2020. Cause No 90 of 2020 was governed by the same ruling and the same issues were raised; counsel had simply left Cause 90 of 2020 out by typing error. The court found the arguments identical and saw no basis to depart from its prior decision, holding it would be duplicative to consider the matters afresh.

p. 3

Legal principles established

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  • Where a court has already granted leave to file appeal out of time on identical issues arising from the same ruling in a related application, it may simply adopt that decision rather than consider the issues afresh.
  • An appeal may be admitted out of time under Section 79G if the appellant shows good and sufficient cause for the delay.

Court orders

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  1. 1.Leave granted to the Applicant to appeal out of time against the ruling of Hon. Josephine Maragia delivered on June 27, 2022 in Kakamega CM ELR Cause No 90 of 2020
  2. 2.Leave granted to file the Notice of Appeal, memorandum of appeal and serve out of time
  3. 3.Costs of the application to the respondents
  4. 4.Record of Appeal to include a fresh memorandum of appeal to be filed in 30 days together with submissions
  5. 5.Mention on April 25, 2023 to confirm compliance and issue response; direction notice to issue

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSections 11 to 18
On appeal from
Kakamega Chief Magistrate's Court (ELRC)
CM ELR Cause No 90 of 2020
Jurisdiction invoked
Section 79G of the Civil Procedure Act (appeal from subordinate court to the High Court; admission of appeal out of time)

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, "Wambasi v Frodak Kenya Limited & another (Miscellaneous Application E002 of 2023) [2023] KEELRC 764 (KLR)", Case Analysis (2023). Miscellaneous Application dated February 6, 2023 (Bungoma High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/764/eng@2023-03-23

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