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ELRCAllowedMotion filed 14 May 2024 (arising from Kisii MC ELRC No. E012 of 2022)· [2024] KEELRC 1592 (KLR)

Ongubo v Nyangena Hospital Ltd (Miscellaneous Civil Application E055 of 2024) [2024] KEELRC 1592 (KLR)

Employment and Labour Relations Court
26 June 2024
RSRadido Stephen
676 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, Gladys Moraa Ongubo, moved the Employment and Labour Relations Court at Kisumu by Motion on 14 May 2024 seeking two principal orders: leave for the firm of Ombui Ratemo & Associates Advocates to come on record in place of Messrs Samuel N. Maingi & Co. Advocates, and leave to file an appeal out of time against the judgment and decree in Kisii MC ELRC No. E012 of 2022, in which she lost to Nyangena Hospital Ltd. The respondent opposed, swearing a replying affidavit through its General Manager, contending that the request for a copy of the judgment and proceedings was lodged only days before the 30-day window lapsed (judgment having been delivered on 6 November 2023 and the request made on 30 November 2023), that there was inordinate delay of about five months before the application was filed, 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 as a matter of procedure since it was unopposed. On extension of time, the court noted the applicant's right of appeal, the unexplained failure of the trial court to release the judgment notwithstanding the five-day performance standard for releasing judgments, the annexation of a draft Memorandum of Appeal, and authority that delay occasioned by factors beyond a party's control is excusable (Njoroge v Kimani). Holding that the interests of justice favoured the applicant, the court granted leave to file and serve the Memorandum of Appeal within 30 days and ordered costs of the application to abide the appeal.

Key legal issues

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01

Whether leave to come on record by a new advocate should be granted

Holding

Granted as a matter of procedure since the respondent did not object

Reasoning

The respondent raised no objection to the incoming firm taking over conduct of the matter from Messrs Samuel N. Mainga & Co. Advocates. The court treated the change of advocates as procedural and allowed the new firm on record without needing to resolve any contested ground.

p. 2
02

Whether the applicant was entitled to leave to appeal out of time

Holding

Leave granted; the delay was excusable and the interests of justice favoured an extension

Reasoning

The applicant had a right of appeal against the magistrate's judgment. The judgment and proceedings had not been released despite the performance standard requiring release within 5 days of delivery, and the previous advocate was not keen to pursue an appeal. A draft Memorandum of Appeal was annexed, showing merit, and the delay was attributable to factors beyond the applicant's control, following Njoroge v Kimani. The court therefore exercised its discretion in her favour.

p. 2

Legal principles established

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  • A court should release or publicise a judgment or decision to the parties and Kenya Law Reports within 5 days of delivery
  • Delay occasioned by factors beyond a party's control, such as non-release of proceedings, justifies extension of time in the interests of justice

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 from the date of the order
  3. 3.Costs of the application to abide the Appeal
Jurisdiction invoked
Discretionary leave to appeal out of time under section 79G of the Civil Procedure Act and Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016, in respect of Kisii MC ELRC No. E012 of 2022

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, "Ongubo v Nyangena Hospital Ltd (Miscellaneous Civil Application E055 of 2024) [2024] KEELRC 1592 (KLR)", Case Analysis (2024). Motion filed 14 May 2024 (arising from Kisii MC ELRC No. E012 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1592/eng@2024-06-26

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