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ELRCPartially AllowedNot stated on the face of the judgment (application dated 15th August, 2023)

Juma v Macharia (Miscellaneous Application E169 of 2023) [2024] KEELRC 247 (KLR)

Employment and Labour Relations Court
9 February 2024
1,383 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court let a worker appeal late after missing a judgment, but refused to stop execution because there was nothing to stop.

What this practically means

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Executive summary

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The Applicant, Priscilla Chepkemoi Juma, filed an application dated 15th August 2023 under Sections 3A and 79G of the Civil Procedure Act and Orders 42 and 51 of the Civil Procedure Rules, 2010, seeking leave to file a memorandum of appeal out of time and a stay of execution of the decree from the judgment of Hon. Caroline Cheptoo Kemei delivered on 16th June 2023 in Milimani CMEL No. 1551 of 2019, in which her claim was dismissed. She explained the delay on the ground that she had no mobile phone and had moved upcountry, learning of the judgment only on 11th August 2023, and filed the application on 15th August 2023. The Respondent opposed, arguing she had not demonstrated substantial loss and had misrepresented facts, including the assertion that costs had been awarded against her and that he had applied for a decree. Applying the Thuita Mwangi factors and Section 79G, the court found the roughly two-month delay not inordinate and adequately explained, and the draft memorandum of appeal arguable, particularly on the existence of an employer-employee relationship. Leave to file the appeal out of time was granted. However, the stay of execution prayer failed: the court noted the Applicant's claim had been dismissed with no orders as to costs and no decree or execution proceedings existed, finding there was nothing to stay and that the Applicant had misrepresented facts. The application was allowed only as to filing the appeal out of time, with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant should be granted leave to file a Memorandum of Appeal out of time under Section 79G of the Civil Procedure Act
  2. 2.Whether a stay of execution of the decree from the judgment of 16th June 2023 should be granted under Order 42 Rule 6

Key legal issues

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01

Whether the delay of roughly two months in seeking leave to appeal was inordinate and excusable

Holding

The delay was not inordinate; the Applicant explained she had no phone and had moved upcountry, and she acted immediately upon learning of the judgment on 11th August 2023 by filing on 15th August 2023.

Reasoning

Guided by Section 79G and the Thuita Mwangi factors, the court weighed the period of delay against the reason given. The advocates had applied for proceedings within the 30-day window. The court found the two-month delay, explained by the Applicant's lack of a phone and upcountry relocation, not inordinate and accepted her explanation.

p. 3
02

Whether the intended appeal was arguable

Holding

The draft memorandum of appeal raised grounds that may need to be addressed on appeal, particularly on the establishment of an employer-employee relationship.

Reasoning

The court examined the draft memorandum attached to the application and found it raised arguable grounds, notably whether an employer-employee relationship existed. The court also noted it is not the habit of courts to send away litigants unheard when they approach within a reasonable time.

p. 3
03

Whether a stay of execution should issue

Holding

Stay was refused because the Applicant's claim had been dismissed with no orders as to costs and no decree or execution existed; the court found the Applicant had misrepresented facts to court.

Reasoning

Applying Order 42 Rule 6(2), the court found the substratum of the stay application wanting: the Applicant had sworn that costs were awarded against her and that the Respondent sought execution, both untrue since her claim was dismissed with no orders as to costs. There being no decree, there was nothing to stay.

p. 4

Legal principles established

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  • An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time (Section 79G, Civil Procedure Act).
  • The factors for extending time include the period and reason for delay, arguability of the appeal, prejudice to the Respondent, importance of compliance with time limits and the effect on the administration of justice.

Court orders

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  1. 1.The Applicant is allowed to file the Appeal out of time
  2. 2.The stay of execution prayer is declined as there is nothing to stay
  3. 3.Costs shall be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Milimani Chief Magistrate's Court (Employment and Labour Relations) - Hon. Caroline Cheptoo Kemei
Milimani CMEL No. 1551 of 2019
Jurisdiction invoked
Sections 3A and 79G of the Civil Procedure Act and Order 42 and Order 51 of the Civil Procedure Rules, 2010 (extension of time to appeal and stay of execution)

Relief refused

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Stay of execution of the decree from the judgment of 16th June 2023

The Applicant's claim had been dismissed with no orders as to costs and no decree or execution proceedings existed, so there was nothing to stay

p. 3

Costs

Costs shall be in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the upshot I allow the Applicant to file the Appeal out of time.
p. 3Final order - leave to appeal out of time granted
The application is therefore found with merit and is hereby allowed only on filing the Appeal out of time.
p. 4Disposition - partial allowance of the application
Costs shall be in the cause.
p. 4Costs order
In this case I note that the Applicant’s claim was dismissed with no orders as to costs. This means that the Applicant has misrepresented these facts to court. There is nothing here to stay in my opinion.
p. 3Refusal of stay of execution
I also note it is not the habit of court of sending away a litigant unheard when they approach a court within a reasonable time.
p. 3Access to justice and approach to extension of time

Issues in the judgment

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material

The judgment itself contains contradictory statements about the costs awarded in the lower court: the Applicant swore the Respondent was awarded costs, while the court found her claim was dismissed with no orders as to costs.

minor

The judgment's opening paragraph cites 'Section 75G of the Civil Procedure Act' while the determination applies 'Section 79G', an apparent typographical inconsistency.

minor

The name of the Respondent is not stated anywhere in the judgment as reproduced; parties are referred to only as Applicant and Respondent.

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, "Juma v Macharia (Miscellaneous Application E169 of 2023) [2024] KEELRC 247 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (application dated 15th August, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/247/eng@2024-02-09

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