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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 925 (KLR)

Agadamba v Amoit t/a Global Care Solutions Nuts & Oil International (Miscellaneous Application E205 of 2022) [2024] KEELRC 925 (KLR)

Employment and Labour Relations Court
5 April 2024
AMAnna Ngibuini Mwaure
1,248 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court allowed a worker to appeal late because a missing certified judgment and a stolen phone delayed him, but gave him only 45 days to act.

What this practically means

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Executive summary

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The Claimant/Applicant moved the court by Notice of Motion dated 25th March 2022 seeking leave to lodge an appeal out of time against the judgment of Hon. Lilian Lewa (PM) delivered on 5th October 2021 in Nairobi Chief Magistrate's Court Cause No.1436 of 2019, which had dismissed his claim entirely. He explained that after the judgment date his advocates repeatedly sought but never received a certified copy of the judgment despite a formal request of 19th November 2021 and payment of fees on 23rd November 2021; separately, the claimant was robbed of his phone on 4th November 2021, cutting off communication with his advocates until 25th February 2022, by which time the appeal period had expired. The court framed one issue: whether leave should be granted to appeal out of time. It applied the principles in Salat v IEBC and the factors in In re Estate of Kimunye Maina quoting Leo Sila Mutiso - length of delay, reason for delay, chances of success and prejudice to the respondent. The court deplored the registry's failure to issue the certified judgment and directed the Deputy Registrar to explain the delay. Persuaded by the constitutional right to be heard and the duty not to lock parties out of the corridors of justice, it granted leave on condition that the record of appeal be filed within 45 days, failing which the order lapses. Costs were made costs in the intended appeal.

Key legal issues

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01

Whether to grant leave to lodge an appeal out of time

Holding

Leave granted; delay sufficiently explained by the registry's failure to avail the certified judgment and the claimant's loss of his phone

Reasoning

The court applied the Salat principles and the Leo Sila Mutiso criteria - length of and reason for delay, chances of the appeal succeeding and prejudice to the respondent. The claimant waited months for a certified copy of judgment which the registry never released despite payment, and his advocates lost contact after he was robbed of his phone. Weighing these factors and the right to be heard, the court exercised its discretion in his favour, subject to a 45-day time limit.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy granted at judicial discretion, requiring the applicant to explain the delay and show absence of prejudice
  • A party should not be locked out of the corridors of justice, having regard to the right to be heard

Court orders

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  1. 1.Leave granted to the Claimant to file an appeal out of time against the judgment of 5th October 2021 in Cause No.1436 of 2019
  2. 2.Claimant to file the record of appeal within 45 days, failing which the order lapses
  3. 3.Costs in the intended appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B (Chapter 21, Laws of Kenya)
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (3)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • In re Estate of Kimunye Maina (Deceased)
    (Miscellaneous Succession Cause E001 of 2020) [2022] KEHC 486 (KLR) (4 May 2022)
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
On appeal from
Chief Magistrate's Court, Nairobi
Cause No.1436 of 2019
Jurisdiction invoked
Discretionary power to grant leave to appeal out of time; right of access to justice under Article 48 of the Constitution

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, "Agadamba v Amoit t/a Global Care Solutions Nuts & Oil International (Miscellaneous Application E205 of 2022) [2024] KEELRC 925 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/925/eng@2024-04-05

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