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ELRCAllowedMotion dated 14 May 2024 (intended appeal from Kisii MC ELRC No. E006 of 2022)· [2024] KEELRC 1593 (KLR)

Osebe v Nyangena Hospital Ltd (Miscellaneous Civil Application E056 of 2024) [2024] KEELRC 1593 (KLR)

Employment and Labour Relations Court
26 June 2024
676 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 allowed a delayed appeal because the judgment wasn't released on time, confirming litigants shouldn't lose appeal rights over court delays.

What this practically means

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Executive summary

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The applicant, Miriam Mosasa Osebe, moved the Employment and Labour Relations Court at Kisumu by Motion dated 14 May 2024 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. E006 of 2022, Miriam Mosasa Osebe v Nyangena Hospital Ltd, judgment having been delivered on 6 November 2023. The applicant argued the delay was inadvertent and excusable because she had been unable to secure a copy of the judgment and proceedings and her previous advocate was not keen to pursue an appeal. The respondent, in a replying affidavit sworn by its General Manager, opposed the application, contending that the request for proceedings was lodged on 30 November 2023, days before the 30-day window lapsed; that about five months of inordinate delay followed; and that the application offended Rule 8(1) and (2) of the ELRC (Procedure) Rules, 2016 and section 79G of the Civil Procedure Act. Radido Stephen J allowed the change of advocates as a matter of procedure, unopposed. On extension of time, the court noted the performance standard that judgments should be released within five days of delivery, observed that the applicant had a right of appeal, and found the delay occasioned by factors beyond her control, applying Njoroge v Kimani [2022] KECA 1188 (KLR). The court granted leave to file and serve a Memorandum of Appeal within 30 days, with costs of the application to abide the appeal.

Key legal issues

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01

Leave to come on record by a new advocate

Holding

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

Reasoning

The respondent raised no objection to the incoming firm, Ombui Ratemo & Associates Advocates, replacing Samuel N. Mainga & Co. Advocates. Absent objection, the court allowed the change of advocates purely as a procedural matter without further inquiry.

p. 2
02

Leave to appeal out of time

Holding

Granted; delay was excusable and interests of justice favoured the applicant.

Reasoning

The applicant had a right of appeal against the Principal Magistrate's judgment. The delay in filing the Memorandum of Appeal was attributed to the non-release of the judgment and proceedings by the trial court, factors beyond her control. Although the respondent alleged inordinate delay and breach of Rule 8(1) and (2) of the ELRC Procedure Rules and section 79G of the Civil Procedure Act, the court found the interests of justice tilted toward exercising discretion in her favour and allowed 30 days to file and serve the appeal.

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 and judgment, 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
  3. 3.Costs of the application to abide the Appeal
On appeal from
Principal Magistrate's Court (Kisii)
Kisii MC ELRC No. E006 of 2022, Miriam Mosasa Osebe v Nyangena Hospital Ltd
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the ELRC subordinate courts, invoking section 79G of the Civil Procedure Act

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, "Osebe v Nyangena Hospital Ltd (Miscellaneous Civil Application E056 of 2024) [2024] KEELRC 1593 (KLR)", Case Analysis (2024). Motion dated 14 May 2024 (intended appeal from Kisii MC ELRC No. E006 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1593/eng@2024-06-26

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