Kenya Red Cross v Bende (Miscellaneous Application E013 of 2023) [2023] KEELRC 3336 (KLR)
The bottom line
#Kenya's Employment Court gave the Red Cross a second chance to appeal a Kshs 1.9 million judgment, ruling a lawyer's wrong filing shouldn't punish the client.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal out of time should be granted
Leave granted; the delay of over two years was satisfactorily explained as arising from the erroneous filing of the appeal in the High Court, a court lacking jurisdiction over the employment dispute.
Applying the Salat principles, the court found the delay was caused by counsel's honest mistake in misrouting the appeal to the High Court, which sat on it for two years before striking it out for want of jurisdiction. The application was filed about three weeks after the High Court's decision. With the decretal sum to be deposited as security, no substantial prejudice would befall the respondent.
Whether the conditions for stay of execution under Order 42 Rule 6(2) were met
Stay granted pending the intended appeal, conditional on deposit of the entire decretal sum in a joint interest-earning account within 30 days.
The court applied Century Oil Trading and found substantial loss: the respondent's financial ability to refund the decretal sum of Kshs. 1,896,040/- was unknown and he failed to demonstrate capacity to refund. The application was made without unreasonable delay and the applicant was willing to provide security, satisfying all three conditions under Order 42 Rule 6(2).
Whether the application was res judicata
The application was not res judicata because the High Court, which earlier conditionally allowed a similar stay application, was not competent to try the matter.
Applying Section 7 of the Civil Procedure Act and the Katabazi and Lotta v Tanaki formulations, the court accepted that the matter was directly and substantially in issue in the former application between the same parties under the same title. However, the fourth condition failed: the High Court lacked competence, as confirmed by Justice Majanja's decision striking out the appeal for want of jurisdiction.
Legal principles established
#- Where an appeal is misrouted to a court without jurisdiction, counsel's honest mistake should not be visited on the litigant and may constitute sufficient cause for extension of time.
- An application is not res judicata where the court that decided the former application was not competent to try it.
- Where an applicant expresses doubt about a decree-holder's ability to refund a money decree, the burden shifts to the respondent to demonstrate financial capability to refund.
Court orders
#- 1.The Applicant is granted leave to appeal out of time against the Judgment of Hon. Magistrate D.O. Mbeja of 8th September 2021 in CMCC Milimani Commercial Case No. 5036 of 2013.
- 2.The Appeal be filed within 14 days of the Ruling.
- 3.Pending the hearing and determination of the intended appeal, a stay of execution of the Decree in Case No. 5036 of 2013 on condition that the entire decretal sum is deposited in a joint interest earning account in the names of both Counsel for the Parties within 30 days.
- 4.In default, execution to issue forthwith.
- 5.Costs of the Application shall be in the Appeal.
- On appeal from
- Chief Magistrate's Court at Nairobi – Milimani Commercial Courts
- 5036 of 2013
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act; Order 42 Rule 6(2) and Order 50 Rule 6 of the Civil Procedure Rules 2010; Article 159 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Red Cross v Bende (Miscellaneous Application E013 of 2023) [2023] KEELRC 3336 (KLR)", Case Analysis (2023). Notice of Motion dated 6th February 2023 (arising from Nairobi CMCC No. 5036 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3336/eng@2023-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.