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ELRCDismissedNot stated in the judgment· [2024] KEELRC 411 (KLR)

Warutere v Open World Limited (Cause 586 of 2013) [2024] KEELRC 411 (KLR)

Employment and Labour Relations Court
29 February 2024
2,480 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused an employer's late appeal because it waited two and a half years without a credible explanation, and must now pay the judgment plus costs.

What this practically means

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Executive summary

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The Respondent/Applicant, the losing party in a employment claim in which judgment was delivered by Maureen Onyango J on 31st January 2020, filed a Notice of Motion dated 28th June 2022 seeking stay of execution of that judgment, leave to lodge a Notice of Appeal out of time, and an order deeming the attached Notice of Appeal as properly lodged. The Applicant, through its director Dorcas Muthoni Gachari, attributed the delay to its former advocates, CR Advocates LLP, who allegedly never communicated the delivery of judgment, only learning of it on about 17th June 2022 when the firm sought to cease acting. The Claimant/Respondent opposed the application through a Replying Affidavit and submissions, arguing that the statutory period for appeal had lapsed over two years earlier, that the delay of over 30 months was inordinate and unexplained, and citing Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another [2018] eKLR. The court, exercising its powers under section 7 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, applied the extension-of-time factors from Mwangi v Kenya Airways Ltd and Edith Gichugi Koine v Stephen Njagi Thoithi. It found the Applicant untruthful about the reasons for the delay, noting the erstwhile advocates' application to cease acting cited lack of instructions, and observed there was no application for typed proceedings, no certified judgment, and no draft memorandum of appeal, indicating no genuine intent to appeal. The delay of two-and-a-half years was held inordinate and unexplained. The application was dismissed with costs.

Key legal issues

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01

Whether the inordinate delay of two years and five months in seeking leave to appeal out of time was sufficiently explained

Holding

The delay was inordinate and unexplained; the Applicant was untruthful about the reasons, having learned of the judgment long before it claimed, and had taken no steps towards an appeal

Reasoning

The court found the Applicant's account contradicted by the erstwhile advocates' application to cease acting, which showed a lack of instructions. The Applicant had not sought typed proceedings, a certified judgment, or prepared a draft memorandum of appeal, showing no genuine intention to appeal. The delay of two-and-a-half years was only explained as a long slumber. Clean hands were also absent.

p. 6
02

Whether the court should exercise its discretion under section 7 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules to extend time

Holding

The discretion was declined; the application failed on the period of delay, the reason for the delay, arguability and prejudice considerations

Reasoning

The court adopted the factors in Mwangi v Kenya Airways Ltd and Edith Gichugi Koine as set out in Samuel Mwaura Muthumbi. Applying them, the period of delay was excessive, the reasons untruthful and insufficient, no arguable appeal was demonstrated (no draft memorandum), and the Claimant would be prejudiced by continued denial of the fruits of his judgment.

p. 6

Legal principles established

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  • A party seeking discretionary orders must come to court with clean hands
  • In an extension-of-time application the court considers the period of delay, the reason for the delay, the arguability of the appeal, prejudice to the respondent, the importance of compliance with time limits, and the effect on the administration of justice

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 28th June 2022
  2. 2.Costs of the application to the Claimant/Respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75

Cases cited (3)

  • Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another
    [2018] eKLR
  • Mwangi v Kenya Airways Ltd
    [2003] KLR
  • Edith Gichugi Koine v Stephen Njagi Thoithi
    [2014] eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal 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, "Warutere v Open World Limited (Cause 586 of 2013) [2024] KEELRC 411 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/411/eng@2024-02-29

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