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ELRCAllowedNotice of Motion dated 27th March 2023 (ELRC, Nyeri)· [2023] KEELRC 2745 (KLR)

Thumbi v Everest Enterprises Limited (Miscellaneous Application E005 of 2023) [2023] KEELRC 2745 (KLR)

Employment and Labour Relations Court
3 November 2023
OMOnesmus N Makau
2,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court in Nyeri allowed a worker to appeal late because she was never told the judgment date, and nobody pays costs.

What this practically means

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Executive summary

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This is a ruling by Onesmus N Makau, J of the Employment and Labour Relations Court at Nyeri on the applicant's Notice of Motion dated 27th March 2023 seeking leave to appeal out of time against the judgment and decree of Honourable Susan Mwangi (SRM) in Muranga CMCELRC Cause No. 6 of 2019, delivered on 11th January 2023, dismissing her claim with costs. The applicant explained the 45-day delay by lack of notice of the judgment date (the date was fixed when her counsel was absent), a missing court file, and absence of any notification of delivery of judgment. The respondent opposed, contending the delay was inordinate and inexcusable, no substantial loss was shown, and the intended appeal was unarguable. The court framed a single issue: whether the applicant had laid a basis for extension of time. Applying section 79G of the Civil Procedure Act, Order 50 Rule 6, and the Salat and Edith Gichugu Koine thresholds, the court held that a court has a duty to notify absent parties of the date fixed for delivery of a pending decision, and found no indication of service or notification here. Satisfied that the delay was explained, the draft memorandum arguable, and no prejudice outweighing the grant, the court allowed the motion, granting leave of 30 days, lapsing automatically thereafter, with no order as to costs since the failure was occasioned by the trial court.

Key legal issues

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01

Whether the applicant established good and sufficient cause for extension of time under section 79G CPA and Order 50 Rule 6

Holding

Yes - the applicant was never served with notice of the judgment date nor notified of its delivery, and the draft memorandum of appeal was arguable, so leave was granted

Reasoning

The court found no indication of service of notice of the judgment date on the applicant; the date was fixed when her counsel was absent. Neither the court nor the respondent notified her of the delivery. Applying Salat and Edith Gichugu Koine, the court found the delay explained, the appeal arguable, and no prejudice outweighing the grant. Article 159 obliged substantive justice; denying leave would banish the applicant from the seat of justice for reasons beyond her control.

p. 4

Legal principles established

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  • Where parties are absent when a court fixes a date for delivery of a pending decision, the court has a duty to issue notice to all parties so an aggrieved party can appeal within time
  • Where a court delivers a decision without prior notice, it must promptly make parties aware of the delivery

Court orders

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  1. 1.Leave granted to the applicant to file appeal out of time against the judgment and decree delivered on 11th January 2023 in Muranga CMCELRC Cause No. 6 of 2019
  2. 2.Leave limited to 30 days from the date of the ruling, failing which the leave lapses automatically
  3. 3.No order as to costs - no party condemned to pay costs of the application

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 79G
  • Civil Procedure Actsection 95
  • Civil Procedure RulesOrder 42 Rule 1
  • Civil Procedure RulesOrder 50 Rule 6
  • Employment and Labour Relations Court (Procedure) Rules 2016Rules 8 and 38
  • Appellate Jurisdiction Actsections 3A and 3B (as quoted in Edith Gichugu Koine)
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Nicholas Mutuku Mwasuna vs Patricia Mueni Kilonzo
    [2022] eKLR
  • Nicholas Kiptoo Salat v Independent Electoral and Boundaries Commission and 7 others
    (2014) eKLR
  • Edith Gichugu Koine v Stephen Njagi Thoithi
    [2014] eKLR
  • Fakir Mohamed V Joseph Mugambi & 2 Others
    Civil Application Nai. 332 of 2004 (unreported)
On appeal from
Muranga CM (ELRC) - Honourable Susan Mwangi (SRM)
Muranga CMCELRC Cause No. 6 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Order 42 Rule 1 and Order 50 Rule 6 of the Civil Procedure Rules; Rules 8 and 38 of the ELRC (Procedure) Rules 2016; sections 3A and 95 of the Civil Procedure Act

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, "Thumbi v Everest Enterprises Limited (Miscellaneous Application E005 of 2023) [2023] KEELRC 2745 (KLR)", Case Analysis (2023). Notice of Motion dated 27th March 2023 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2745/eng@2023-11-03

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