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ELRCAllowedNotice of Motion dated 6th February 2023 (arising from Nairobi CMCC No. 5036 of 2013)· [2023] KEELRC 3336 (KLR)

Kenya Red Cross v Bende (Miscellaneous Application E013 of 2023) [2023] KEELRC 3336 (KLR)

Employment and Labour Relations Court
19 December 2023
4,295 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicant, Kenya Red Cross Society, moved the Employment and Labour Relations Court by Notice of Motion dated 6th February 2023 seeking leave to appeal out of time and stay of execution of the judgment of Hon. D.O. Mbeja (PM) delivered on 8th September 2021 in Nairobi CMCC No. 5036 of 2013, in which general and special damages were awarded to the Respondent. Its earlier appeal, filed in the High Court on 28th September 2021, was struck out by Justice Majanja on 17th January 2023 for want of jurisdiction, the dispute arising from an employer-employee relationship. The Respondent opposed through a preliminary objection arguing res judicata, on the basis that a similar stay application had been made and conditionally allowed in the High Court, and a replying affidavit citing the Applicant's non-compliance with the deposit condition and delay in a decade-old dispute. Ocharo Kebira, J framed three issues: extension of time, stay of execution, and res judicata. Applying the Salat principles, the court held the over-two-year delay was satisfactorily explained as counsel's honest misrouting of the appeal to a forum without jurisdiction, and the application was brought promptly some three weeks after the High Court's decision. On stay, the court found substantial loss established given the Respondent's failure to demonstrate ability to refund the decretal sum of Kshs. 1,896,040/-, no unreasonable delay, and willingness to give security. The preliminary objection on res judicata failed because the High Court, which decided the former application, was not competent to try it. The application was allowed: leave to appeal out of time granted, the appeal to be filed within 14 days, stay of execution granted conditional on deposit of the entire decretal sum in a joint interest-earning account within 30 days, execution to issue in default, and costs in the appeal.

Key legal issues

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01

Whether leave to appeal out of time should be granted

Holding

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.

Reasoning

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.

p. 5
02

Whether the conditions for stay of execution under Order 42 Rule 6(2) were met

Holding

Stay granted pending the intended appeal, conditional on deposit of the entire decretal sum in a joint interest-earning account within 30 days.

Reasoning

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).

p. 6
03

Whether the application was res judicata

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 2.The Appeal be filed within 14 days of the Ruling.
  3. 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. 4.In default, execution to issue forthwith.
  5. 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

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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, "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.