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ELRCDismissedNotice of Motion dated October 18, 2022 (referring to Thika CMCC No. 105 of 2018)· [2023] KEELRC 1679 (KLR)

Sygenta Pollen Limited v Mbogo (Employment and Labour Relations Cause E110 of 2022) [2023] KEELRC 1679 (KLR)

Employment and Labour Relations Court
13 July 2023
2,196 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let a man appeal 11 months late because he gave vague reasons and no proof he had acted diligently.

What this practically means

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Executive summary

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The Applicant, Jackson Muema Kisinga, moved the court by Notice of Motion dated October 18, 2022 under Order 51 Rule 1 of the Civil Procedure Rules and Sections 79G and 95 of the Civil Procedure Act, seeking leave to file an appeal out of time against a ruling of Chief Magistrate AM Maina delivered on July 27, 2021 in Thika CMCC No. 105 of 2018, deeming of the Memorandum of Appeal as filed, and setting aside of an order dismissing an application dated May 28, 2018. He explained that the advocate handling the matter failed to attend the delivery of the ruling, left the firm without handover, and the file was only discovered in June 2022. The Respondent opposed, arguing the delay of about five years was inordinate and intended to sabotage the main suit fixed for hearing in June 2023. The court framed a single issue: whether the application was merited. It applied the proviso to Section 79G, holding that leave requires good and sufficient cause, being an exercise of judicial discretion guided by the length of and reason for delay, prejudice, and arguability. It found the delay inordinate, the explanation deficient in essential details and unsupported by documentary evidence, and discernible inaction on the applicant's part. It also noted that neither the ruling nor a record of appeal was availed, so there was no appeal capable of admission out of time. The application was dismissed with costs. All authorities other than those the court itself applied were cited by the applicant only.

Key legal issues

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01

Whether the applicant demonstrated good and sufficient cause for the delay in filing the intended appeal

Holding

No - the delay of about 11 months was inordinate and a degree of inaction was discernible; essential details were missing from the supporting affidavit and no documentary evidence was availed.

Reasoning

The affidavit failed to state the date the advocate left employment, when the firm discovered it, or the file bring-up system. The file lay dormant until June 2022 and the application was filed a further five months later. Granting leave would also delay the hearing of the main suit to the prejudice of a claimant acting in person.

p. 5
02

Whether there was an arguable appeal capable of admission out of time

Holding

No appeal was properly before the court for admission since neither the ruling appealed against nor the record of appeal was availed.

Reasoning

Apart from a draft Memorandum of Appeal, the applicant provided no ruling or record of appeal, so the court could not assess arguability. Without these documents there was no appeal to admit out of time under the proviso to Section 79G, as held in Gerald M'Limbine v Joseph Kangangi.

p. 5

Legal principles established

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  • Leave to file an appeal out of time is granted only where the applicant establishes good and sufficient cause under the proviso to Section 79G of the Civil Procedure Act.
  • Sufficient cause means the party did not act negligently, inactively or without bona fides.
  • Extension of time is an exercise of judicial discretion guided by factors including length of and reason for delay, prejudice, and arguability of the appeal.

Court orders

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  1. 1.The Notice of Motion dated October 18, 2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Work Injury Benefits ActSection 27

Cases cited (13)

  • Murage Nyawira Gladys V Lydia Mutindi Mutunga
    (2022) eKLR
  • Feroz Begum Quereshi & another V Maganbhai Patel & others
    (1964) EA 633
  • Peter Kioko & another V Elizabeth Wanza Musyoki
    (2021) eKLR
  • Nicholas Kiptoo Arap Korir Salt V IEBC & 7 others
    (2014) eKLR
  • Belinda Murai V Amos Wainaina (No 4)
    (1982) KLR 38
  • Kalemera V Salaama Estates Ltd
    (1971) EA 284
  • Law Society of Kenya V Attorney General & another
    (2019) eKLR
  • Olympic Escort International Co Ltd & 2 others V Parminder Singh Sandhu & another
    (2009) eKLR
  • Juma Nyaleko V Fredrick Omondi Oketch
    (2021) eKLR
  • FWNM V SMM
    (2019) eKLR
  • Daphne Parry V Murray Alexander Carson
    (1963) EA 546
  • Thuita Mwangi V Kenya Airways Ltd
    (2003) eKLR
  • Gerald M’Limbine V Joseph Kangangi
    (2009) eKLR
On appeal from
Chief Magistrate's Court, Thika
Thika CMCC No. 105 of 2018
Jurisdiction invoked
Section 79G and Section 95 of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

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, "Sygenta Pollen Limited v Mbogo (Employment and Labour Relations Cause E110 of 2022) [2023] KEELRC 1679 (KLR)", Case Analysis (2023). Notice of Motion dated October 18, 2022 (referring to Thika CMCC No. 105 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1679/eng@2023-07-13

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