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ELRCDismissedMombasa MC ELR Case No. E290 of 2021 (application: Notice of Motion dated February 14, 2023)· [2023] KEELRC 2363 (KLR)

Ong’ere v Babito General Contractors (Miscellaneous Case E009 of 2023) [2023] KEELRC 2363 (KLR)

Employment and Labour Relations Court
29 September 2023
ANAGNES KITIKU NZEI
632 words in judgment
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The bottom line

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A Kenyan court refused to hear an appeal request because the applicant didn't attach the judgment he wanted to appeal — always include the full ruling.

What this practically means

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Executive summary

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The Applicant moved the Employment and Labour Relations Court at Mombasa by Notice of Motion dated February 14, 2023, brought under Section 12 of the Employment and Labour Relations Court Act, Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, seeking leave to file an appeal out of time against the judgment of Honourable G. Kiage, Senior Resident Magistrate, delivered on January 6, 2023 in Mombasa MC ELR Case No. E290 of 2021. The Applicant deponed that judgment had been delivered without notice to the parties; his advocate only learnt of it on January 23, 2023 through the judiciary portal, and discovered its content on February 14, 2023. He argued the delay was neither inordinate nor of his making, and that the intended appeal had high chances of success, annexing a draft memorandum of appeal raising four grounds. The Respondent opposed through grounds of opposition dated February 22, 2023, terming the application vexatious, defective and an abuse of process. The Court noted that although a draft memorandum was annexed, the Applicant did not exhibit the impugned judgment or decree. Holding that it could not grant leave to appeal against a judgment it had not seen, and that the application was therefore hollow and incompetent, Nzei J struck it off with no order as to costs, while granting the Applicant thirty days within which to file a proper application if he so wished.

Key legal issues

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01

Whether leave to appeal out of time can be granted where the impugned judgment is not exhibited

Holding

The application was incompetent and was struck off because the impugned judgment/decree was not placed before the Court

Reasoning

The Applicant's supporting affidavit did not annex a copy of the judgment intended to be appealed against. Without the judgment, the Court had nothing to consider in assessing the intended appeal or the explanation for delay. The Court agreed with the Respondent that the application was incompetent, struck it off, but allowed the Applicant thirty days to file a proper application.

p. 2

Legal principles established

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  • A court cannot grant leave to appeal against a judgment that has not been placed before it; an application for extension of time must exhibit the impugned judgment/decree

Court orders

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  1. 1.The application is struck off with no order as to costs
  2. 2.The Applicant may file a proper application if he so wishes, within thirty days of the Ruling

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 50 Rule 6
On appeal from
Chief Magistrate's Court, Mombasa (Senior Resident Magistrate G. Kiage)
Mombasa MC ELR Case No. E290 of 2021
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, Section 95 of the Civil Procedure Act and Order 50 Rule 6 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, "Ong’ere v Babito General Contractors (Miscellaneous Case E009 of 2023) [2023] KEELRC 2363 (KLR)", Case Analysis (2023). Mombasa MC ELR Case No. E290 of 2021 (application: Notice of Motion dated February 14, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2363/eng@2023-09-29

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