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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 781 (KLR)

Nkorui v Meru South Farmers Co-operative Society Limited (Miscellaneous Application E007 of 2023) [2024] KEELRC 781 (KLR)

Employment and Labour Relations Court
12 April 2024
OMONESMUS N MAKAU
1,281 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 gave a client extra time to appeal because his lawyer's honest mistake in filing in the wrong court shouldn't punish the client.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nyeri (Onesmus N Makau, J) delivered on 12th April 2024 on the applicant's Notice of Motion dated 12th July 2023 brought under sections 3A, 79G and 95 of the Civil Procedure Act, Order 51 Rules 1 and 3 of the Civil Procedure Rules and Article 50 of the Constitution. The applicant sought leave to appeal out of time against a ruling delivered on 9th November 2022 by Honourable J.M. Gandani in Chuka CMCC No. 72 of 2004, and for the annexed Memorandum of Appeal to be admitted. He explained that he had filed an appeal in the High Court at Chuka (E033 of 2022) within time, but it was struck out for want of jurisdiction, as evidenced by an email from the Deputy Registrar. The respondent opposed the application, contending that the appeal was still pending in the High Court and that the application prolonged proceedings dating from 2004. The sole issue was whether the applicant had laid a basis for extension of time. Applying the Supreme Court's principles in Nicholas Kiptoo Salat v IEBC and related authorities, the court found the unchallenged email established sufficient reason for the delay, held that counsel's honest mistake should not be visited on an innocent client, and found no prejudice to the respondent that costs could not cure. The application was allowed: leave to file the appeal within 15 days, with the applicant to pay the respondent Kshs. 10,000 as throw-away costs within 30 days.

Key legal issues

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01

Whether the applicant established sufficient grounds for extension of time to appeal out of time

Holding

The application was allowed: the unchallenged email showing the High Court struck out the appeal for lack of jurisdiction provided sufficient reason for the delay, and the respondent suffered no cognisable prejudice.

Reasoning

The court applied the Salat principles on extension of time. The applicant attributed the delay to filing in the wrong court, and exhibited an unchallenged email from the Deputy Registrar, Chuka High Court, confirming the appeal was struck out for want of jurisdiction. The respondent produced no evidence that the appeal remained pending in the High Court. Counsel's honest mistake could not be visited on an innocent client, and the respondent could be compensated by costs while the applicant would suffer real prejudice if leave were withheld.

p. 3
02

Whether the respondent's claim that the appeal was still pending before the High Court defeated the application

Holding

The contention failed for want of evidentiary support.

Reasoning

The respondent alleged that the applicant's appeal was still pending before the High Court and asked the court to allow it to proceed there. The court found that the applicant had exhibited an email from the Deputy Registrar showing the appeal had been struck out for lack of jurisdiction, and that the respondent tendered no evidence to substantiate the claim of pendency. The unchallenged email therefore carried the day on this issue.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party, who must explain the delay to the court's satisfaction
  • A mistake by counsel in filing an appeal in the wrong court should not be visited upon an innocent client
  • Excusable delay is delay that is unforeseeable and beyond the control of the party

Court orders

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  1. 1.Leave is granted to the applicant to file appeal within 15 days of this Ruling
  2. 2.The applicant to pay the respondent Kshs. 10,000 as throw-away costs within 30 days of this ruling

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 79G & 95
  • Civil Procedure RulesOrder 51 Rules 1 and 3
  • Constitution of KenyaArticle 50
  • Appellate Jurisdiction ActSections 3A and 3B
  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi (UR)
  • Dilpack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR
  • Nicholas Kiptoo Salat v Independent Electoral and Boundaries Commission and 7 others
    (2014) eKLR
  • Edith Gichugu Koine v Stephen Njagi Thoithi
    [2014] eKLR
  • Fakir Mohamed v Joseph Mugambi & 2 Others
    Civil Application Nai. 332 of 2004 (unreported)
  • Njoroge v Kimani
    (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR) (28 October 2022) (Ruling)
On appeal from
Chief Magistrate's Court at Chuka
Chuka CMCC No. 72 of 2004
Jurisdiction invoked
Sections 3A, 79G & 95 of the Civil Procedure Act, Order 51 Rules 1 and 3 of the Civil Procedure Rules and Article 50 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nkorui v Meru South Farmers Co-operative Society Limited (Miscellaneous Application E007 of 2023) [2024] KEELRC 781 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/781/eng@2024-04-12

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