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ELRCAllowedNot stated (Motion filed 14 May 2024)· [2024] KEELRC 1591 (KLR)

Onchuki v Nyangena Hospital Ltd (Miscellaneous Civil Application E052 of 2024) [2024] KEELRC 1591 (KLR)

Employment and Labour Relations Court
26 June 2024
675 words in judgment
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The bottom line

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The Employment and Labour Relations Court in Kisumu gave a Kenyan employee a second chance to appeal after delays she couldn't control.

What this practically means

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Executive summary

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Millicent Nyaboke Onchiri filed a Motion seeking leave for the firm of Ombui Ratemo & Associates Advocates to come on record in place of 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 (Nyangena Hospital Ltd v. Millicent Nyaboke Onchiri). The judgment had been delivered on 6 November 2023, and the applicant lodged a request for proceedings on 30 November 2023, just days before the 30-day window lapsed; the motion was filed about five months later. The respondent opposed, alleging inordinate and inexcusable delay and breach of Rule 8(1) and (2) of the ELRC (Procedure) Rules, 2016 and section 79G of the Civil Procedure Act. The court allowed the change of advocates without objection, observed that judgments should be released within five days of delivery, accepted that the delay was caused by factors beyond the applicant's control including non-release of the judgment and her former advocate's lack of diligence, and noted she had annexed a draft Memorandum of Appeal. The interests of justice tilted in her favour. The court allowed the firm on record, granted leave to file and serve the Memorandum of Appeal within 30 days, and directed that costs of the application abide the appeal.

Key legal issues

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01

Whether the delay of about five months in filing the appeal was excusable

Holding

The delay was occasioned by factors beyond the applicant's control, including non-release of the judgment and proceedings, and the interests of justice favoured extending time

Reasoning

The court noted the applicant had a right of appeal against the Principal Magistrate's judgment, had annexed a draft Memorandum of Appeal showing the intended appeal was not frivolous, and that the trial court had not released the judgment as required by the 5-day performance standard. The applicant had timely requested proceedings, and the previous advocate's lack of diligence was a factor beyond her control. The court therefore exercised its discretion in her favour.

p. 2

Legal principles established

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  • Courts should release or publicise judgments 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 allowed to come on record for the applicant
  2. 2.Applicant granted leave to file and serve a Memorandum of Appeal within 30 days
  3. 3.Costs of the application to abide the Appeal
Jurisdiction invoked
Inherent discretionary jurisdiction to extend time for filing an appeal; section 79G of the Civil Procedure Act and Rule 8(1) and (2) of the Employment and Labour Relations Court (Procedure) Rules, 2016 invoked by the parties

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, "Onchuki v Nyangena Hospital Ltd (Miscellaneous Civil Application E052 of 2024) [2024] KEELRC 1591 (KLR)", Case Analysis (2024). Not stated (Motion filed 14 May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1591/eng@2024-06-26

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