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ELRCDismissedNot stated in judgment· [2023] KEELRC 1114 (KLR)
Mwaranguo v Naushad Trading Company Limited (Miscellaneous Application E075 of 2022) [2023] KEELRC 1114 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#A Kenyan employment court refused to extend appeal time because the applicant never explained why he missed the 30-day deadline.
What this practically means
#Executive summary
#The applicant, acting in person, moved the Employment and Labour Relations Court at Mombasa by Notice of Motion dated November 17, 2022 seeking leave to file an appeal out of time against the judgment of Honourable M. Mutuku in CM ELR Case No. 105 of 2020 delivered on August 1, 2022, together with costs in the cause. He deponed that he learned of the dismissal of his claim on October 25, 2022 when he visited his former advocate's office, and that the time for appealing lapsed on September 2, 2022. The respondent opposed through grounds of opposition, arguing the application was frivolous, offended section 79G of the Civil Procedure Act, that no notice of appeal was on record, and that the applicant was represented when judgment was delivered. The court noted that the ELRC (Procedure) Rules 2016 are silent on extension of time, so the proviso to section 79G of the Civil Procedure Act applies, empowering a court of equal status with the High Court to extend time upon sufficient cause. Relying on Dilpack (K) Limited v William Muthama Kitonyi and Ratman v Cumarasamy, the court held that where there is no explanation there is no indulgence. Because the applicant offered no reason for the failure to file within the statutory 30 days, the application was dismissed with each party bearing its own costs. Agnes Kitiku Nzei, Judge, delivered the ruling on April 28, 2023 via Microsoft Teams.
Key legal issues
#01
Extension of time to file an appeal out of time under the proviso to section 79G of the Civil Procedure Act
Holding
The application fails because the applicant offered no explanation for the delay
Reasoning
The court's rules are silent on extension of time, so section 79G of the Civil Procedure Act applies, allowing extension upon sufficient cause. The applicant did not explain why the appeal was not filed within the 30 days after the August 1, 2022 judgment. Following Dilpack, without an explanation the discretion cannot be exercised in the applicant's favour, and the application must be dismissed.
p. 2
Legal principles established
#- In an application for extension of time, the burden is on the party seeking indulgence to explain the non-compliance; where there is no explanation, there is no indulgence
Court orders
#- 1.The Notice of Motion dated November 17, 2022 is dismissed
- 2.Each party will bear its own costs of the application
- On appeal from
- Magistrates' Court (subordinate court)
- CM ELR Case No. 105 of 2020
- Jurisdiction invoked
- Proviso to section 79G of the Civil Procedure Act, 2010 (court of equal status with the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaranguo v Naushad Trading Company Limited (Miscellaneous Application E075 of 2022) [2023] KEELRC 1114 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1114/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.