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ELRCPartially AllowedELRC Cause No.502 of 2021 (application dated 3 October 2023)· [2023] KEELRC 3455 (KLR)

Radar Limited v Gitahi (Miscellaneous Application E046 of 2023) [2023] KEELRC 3455 (KLR)

Employment and Labour Relations Court
23 November 2023
1,751 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court let an employer file a late appeal in 14 days but refused a stay, forcing it to deposit the full judgment sum and pay the employee's costs.

What this practically means

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Executive summary

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The applicant, Radar Limited, moved the ELRC at Mombasa by application dated 3 October 2023 seeking leave to file an appeal out of time against the judgment of the Chief Magistrates Court (ELRC Cause No.502 of 2021, Faith Wanjiku v Radar Limited) delivered on 30 March 2023, together with stay of the lower court proceedings and the judgment and decree pending the intended appeal, and costs. The applicant explained the delay as an inadvertent mistake by its advocate, who filed a stay-of-execution application under the mistaken belief that a memorandum of appeal had been lodged. The respondent opposed, asserting that the application was brought after a seven-month delay without justification, that the applicant knew from May 2023 that no appeal was on record, that the drafts of the memorandum attached to successive applications differed fundamentally, and that the application was an abuse of process. The court set out the statutory framework under Section 79G of the Civil Procedure Act and Section 17 of the ELRC Act read with rule 8 of the ELRC (Procedure) Rules, and applied the factors in Omar Shurie v Marian Rushe Yafar and the eight Salat criteria. Finding the delay unaccounted for but attributable in part to counsel, the court declined to lock the applicant out. However, it limited relief to 14 days' leave to file and serve the appeal, directed deposit of the decretal sum in a joint interest-earning account within the same period, refused the stay and the applicant's costs, and awarded costs of the proceedings to the respondent.

Key legal issues

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01

Leave to appeal out of time under Section 79G Civil Procedure Act

Holding

Leave granted for 14 days notwithstanding unexplained delay, in recognition of the right of appeal

Reasoning

The court applied the Omar Shurie factors and the Salat criteria. The delay from 30 March 2023 to 3 October 2023 was unaccounted for and the explanations (inadvertent mistake of advocate) were inconsistent - two different deponents attached different draft memoranda of appeal. Nevertheless, weighing the right of appeal and that the lapse arose from counsel, the applicant was not to be locked out of court, but relief was confined to 14 days' leave with security of the decretal sum.

p. 4
02

Whether the delay was intentional and candidly explained

Holding

The delay was not honestly explained; the applicant was aware from May 2023 that no appeal had been filed

Reasoning

The court noted the discrepancy between the supporting affidavits of Rinah Ondego and Beryl Odhiambo, who attached different memoranda of appeal. The draft memorandum attached to the lower-court stay application differed fundamentally from the one filed in the High Court. The intervening period from May to October 2023 was unaccounted for, undermining the claim of inadvertent mistake.

p. 4

Legal principles established

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  • Factors for granting leave to file appeal out of time include the length of and reasons for the delay, chances of success, and prejudice to the respondent
  • A mistake of advocate may not be visited on the client so as to lock a party out of court, but the party in default cannot claim costs of the application

Court orders

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  1. 1.Leave granted to the applicant to file appeal out of time within 14 days and serve the respondent; failing which the leave lapses automatically
  2. 2.The decretal sum awarded by the lower court to be deposited in a joint interest-earning account held by both parties within the same 14 days
  3. 3.Costs of the proceedings awarded to the respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A and 79G
  • Civil Procedure RulesOrder 42 rule 6; Order 51 rule 1
  • Employment and Labour Relations Court ActSection 17
  • Employment and Labour Relations Court (Procedure) RulesRule 8

Cases cited (2)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Omar Shurie v Marian Rushe Yafar
    Civil Application No. 107 of 2020
On appeal from
Mombasa Chief Magistrates Court (ELRC)
ELRC Cause No.502 of 2021 Faith Wanjiku v Radar Limited
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Section 17 of the Employment and Labour Relations Court Act, 2011 read with rule 8 of the ELRC (Procedure) Rules, 2016; Order 42 rule 6 and Order 51 rule 1 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, "Radar Limited v Gitahi (Miscellaneous Application E046 of 2023) [2023] KEELRC 3455 (KLR)", Case Analysis (2023). ELRC Cause No.502 of 2021 (application dated 3 October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3455/eng@2023-11-23

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