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ELRCAllowedMotion dated 14 May 2024 (arising from Kisii MC ELRC No. E014 of 2022, Immaculate Moraa v Nyangena Hospital Ltd)

Moraa v Nyangena Hospital Ltd (Miscellaneous Civil Application E051 of 2024) [2024] KEELRC 1590 (KLR)

Employment and Labour Relations Court
26 June 2024
RSRadido Stephen
656 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court gave a former hospital employee more time to appeal because the delayed judgment and her lawyer's inaction—not her—caused the delay.

What this practically means

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Executive summary

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Immaculate Moraa (applicant) moved the Employment and Labour Relations Court at Kisumu by Motion dated 14 May 2024 against Nyangena Hospital Ltd (respondent), seeking leave for the firm of Ombui Ratemo & Associates Advocates to come on record in place of Messrs Samuel N. Mainga & Co. Advocates, and leave to appeal out of time against the judgment and decree in Kisii MC ELRC No. E014 of 2022. The judgment there had been delivered on 6 November 2023, opening a 30-day window to appeal. The applicant attributed the delay to her inability to secure a copy of the judgment and proceedings, and to her previous advocate's lack of keenness to pursue an appeal; she annexed a draft Memorandum of Appeal. The respondent, in a replying affidavit sworn by its General Manager, opposed, arguing the request for proceedings was lodged on 30 November 2023, near the lapse of the window, that there had been indolence and inordinate delay of about five months, and that the application offended Rule 8(1) and (2) of the ELRC (Procedure) Rules, 2016 and section 79G of the Civil Procedure Act. The Court, per Radido Stephen, J, allowed the change of advocates unopposed, observed that judgments should be released within five days of delivery, found the applicant had a right of appeal and that the delay was occasioned by factors beyond her control, and held the interests of justice favoured exercising discretion in her favour. The Court allowed the firm on record, granted leave to file and serve the Memorandum of Appeal within 30 days, and ordered costs to abide the appeal. The motion was allowed in full.

Questions the Court framed

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

  1. 1.Whether the firm of Ombui Ratemo & Associates Advocates should be granted leave to come on record for the applicant
  2. 2.Whether the applicant should be granted leave to file an appeal out of time against the judgment and decree in Kisii MC ELRC No. E014 of 2022

Key legal issues

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01

Whether inordinate delay in filing the appeal should be excused

Holding

Yes; the delay was occasioned by factors beyond the applicant's control, including non-release of the judgment and proceedings, and the interests of justice favour an extension

Reasoning

The applicant could not secure a copy of the judgment and proceedings to prepare a Memorandum of Appeal, and her previous advocate was not keen to pursue the appeal. A draft Memorandum of Appeal was annexed showing the intended appeal was arguable. The Court noted the performance standard of releasing judgments within five days and found the delay excusable, tilting the discretion in favour of the applicant.

p. 2

Legal principles established

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  • A court should release or publicise a judgment to the parties and Kenya Law Reports within 5 days of delivery

Court orders

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  1. 1.The firm of Ombui Ratemo & Associates Advocates is allowed to come on record for the applicant
  2. 2.The applicant is granted leave to file and serve a Memorandum of Appeal within 30 days
  3. 3.Costs of the application to abide the Appeal

The bench

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

RS
majority

Wrote the judgment

On appeal from
Principal Magistrate's Court (Kisii)
Kisii MC ELRC No. E014 of 2022
Jurisdiction invoked
Section 79G of the Civil Procedure Act; leave to appeal out of time

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.

The applicant is granted leave to file and serve a Memorandum of Appeal within 30-days from today.
p. 2final orders - extension of time
In the Court's view, the interests of justice tilt towards exercising the Court's discretion in favour of the applicant.
p. 2discretion and interests of justice
It has now become a performance standard in this jurisdiction that a Court should release or publicise a judgment or decision to the parties and Kenya Law Reports within 5 days of delivery.
p. 2performance standard on release of judgments

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, "Moraa v Nyangena Hospital Ltd (Miscellaneous Civil Application E051 of 2024) [2024] KEELRC 1590 (KLR)", Case Analysis (2024). Motion dated 14 May 2024 (arising from Kisii MC ELRC No. E014 of 2022, Immaculate Moraa v Nyangena Hospital Ltd). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1590/eng@2024-06-26

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