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ELRCAllowedMotion filed 14 May 2024 (ELRC, Kisumu) seeking leave to appeal out of time against Kisii MC ELRC No. E005 of 2022· [2024] KEELRC 1610 (KLR)
Ondieki v Nyangena Hospital Ltd (Miscellaneous Civil Application E050 of 2024) [2024] KEELRC 1610 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The applicant, Samuel Mirambo Ondieki, moved the Employment and Labour Relations Court at Kisumu by Motion dated filed 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. Mainga & Co. Advocates, and leave to file an appeal out of time against the judgment and decree in Kisii MC ELRC No. E005 of 2022, Samuel Mirambo Ondieki v Nyangena Hospital Ltd, judgment having been delivered on 6 November 2023. The Respondent, Nyangena Hospital Ltd, opposed in a replying affidavit sworn by its General Manager, contending that the request for a copy of judgment and proceedings was lodged only days before the 30-day appeal window lapsed, that there had been 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 Respondent did not oppose the change of advocates. The Court allowed the new firm to come on record as a matter of procedure. On extension of time, the Court noted the applicant's right of appeal, the failure to release the judgment despite the performance standard requiring release within five days, the annexed draft Memorandum of Appeal, and the authority of Njoroge v Kimani (2022) KECA 1188 (KLR), and held 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. Delivered virtually, dated and signed at Kisumu on 26 June 2024 by Radido Stephen, Judge.
Key legal issues
#01
Leave to appeal out of time
Holding
The interests of justice justified exercising the Court's discretion in favour of the applicant, delay being occasioned by factors beyond his control
Reasoning
The applicant could not secure a copy of the judgment and proceedings to prepare a Memorandum of Appeal; the previous advocate was not keen to pursue the appeal; a draft Memorandum of Appeal was annexed. The Court noted the trial court's delay in releasing the judgment and that expeditious typing of proceedings is a known challenge, and held the interests of justice tilted towards granting leave.
p. 2
Legal principles established
#- It is a performance standard in this jurisdiction that a Court should release or publicise a judgment to the parties and Kenya Law Reports within 5 days of delivery
Court orders
#- 1.The firm of Ombui Ratemo & Associates Advocates is allowed to come on record for the applicant
- 2.The applicant is granted leave to file and serve a Memorandum of Appeal within 30 days from the date of the order
- 3.Costs of the application to abide the Appeal
- On appeal from
- Magistrates' Court (ELRC), Kisii
- MC ELRC No. E005 of 2022
- Jurisdiction invoked
- Inherent discretion to extend time for appeal; section 79G of the Civil Procedure Act and Rule 8(1) and (2) of the Employment and Labour Relations Court (Procedure) Rules, 2016 raised by the Respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondieki v Nyangena Hospital Ltd (Miscellaneous Civil Application E050 of 2024) [2024] KEELRC 1610 (KLR)", Case Analysis (2024). Motion filed 14 May 2024 (ELRC, Kisumu) seeking leave to appeal out of time against Kisii MC ELRC No. E005 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1610/eng@2024-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.