Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowednot stated in the judgment as provided (application dated 22nd July 2022)· [2023] KEELRC 2756 (KLR)

Lisutsa v Bob Morgan Services Limited (Appeal E125 of 2022) [2023] KEELRC 2756 (KLR)

Employment and Labour Relations Court
24 October 2023
DMD. K. NJAGI MARETE
672 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court allowed an appeal filed late because a missing court file and the lawyer's silence—not the worker—caused the delay.

What this practically means

#

Executive summary

#
This was a notice of application dated 22nd July 2022 in which the claimant/applicant sought leave to extend time within which to lodge and serve a record of appeal and to file an appeal against a judgment delivered on 1st July 2021 by Honourable L.T. Lewa, which dismissed the claimant's suit except a prayer for annual leave. The applicant explained that his trial advocate did not inform him of the true position of the matter, and that the court file went missing in the registry until 13th July 2022 when he personally travelled from Kakamega to Nairobi and found it; by the time he requested proceedings and judgment on 18th July 2022, the timeline under rule 75(2) of the Appeal Rules had lapsed. He argued that the mistake of his advocate could not be shifted to him, that he had an arguable appeal as demonstrated by a draft memorandum of appeal, and that the respondent would suffer no prejudice. The respondent opposed the application through a replying affidavit sworn on 29th September 2023, contending it was bad in law and incompetent, and sought its dismissal with costs. The parties agreed on 18th October 2023 to have the application determined on the pleadings. The court found for the applicant, holding that his misfortune was occasioned by the missing court file, that he had given a reasonable explanation and demonstrated an arguable appeal, and that no prejudice would befall the respondent. The application was allowed with costs to the claimant/applicant on 24th October 2023.

Key legal issues

#
01

Whether to grant extension of time to lodge and serve record of appeal

Holding

The application was allowed; the court found the applicant's explanation - that the court file went missing in the registry and his trial advocate did not inform him of the true position - reasonable and that granting the orders would prejudice no one.

Reasoning

The court reasoned that the applicant's misfortune arose from his interactions with the cause registry where the file went missing for a long time, hampering his ability to lodge the appeal in time. He exhibited a draft memorandum of appeal demonstrating an arguable appeal and gave a reasonable explanation for the delay. The respondent would suffer no prejudice if the extension was granted, so the interests of justice favoured allowing the application.

p. 2

Legal principles established

#
  • An innocent attempt at pursuing justice, where no prejudice is caused to the respondent, warrants exercise of discretion to extend time

Court orders

#
  1. 1.Leave granted to the claimant/applicant to extend time within which to lodge and serve the record of appeal and to file the appeal
  2. 2.Costs of the application awarded to the claimant/applicant

Authorities

#

Legislation

  • Court of Appeal Rules (referred to as 'Appeal Rules')rule 75(2)
On appeal from
Magistrates' Court (trial before Honourable L.T. Lewa)
null
Jurisdiction invoked
Rule 75(2) of the Court of Appeal Rules referenced for lodging timelines; application for leave to extend time to lodge and serve record of appeal and to file appeal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lisutsa v Bob Morgan Services Limited (Appeal E125 of 2022) [2023] KEELRC 2756 (KLR)", Case Analysis (2023). not stated in the judgment as provided (application dated 22nd July 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2756/eng@2023-10-24

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