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ELRCAllowedRuling on Motion dated 14 May 2024 (intended appeal from Kisii MC ELRC No. E009 of 2022)· [2024] KEELRC 1611 (KLR)

Kenyanya v Nyangena Hospital Ltd (Miscellaneous Civil Application E053 of 2024) [2024] KEELRC 1611 (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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The bottom line

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A Kenyan employment court let a former hospital worker appeal late, ruling the delay was caused by court delays and her ex-lawyer, not her.

What this practically means

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Executive summary

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The applicant, Josphine Mokobi Kenyenya, 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 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. E009 of 2022, Josphine Mokobi Kenyenya v Nyangena Hospital Ltd, delivered on 6 November 2023. The respondent, Nyangena Hospital Ltd, opposed in a replying affidavit sworn by its General Manager, contending that a request for certified proceedings was lodged only on 30 November 2023, just before the 30-day appeal window lapsed; that the applicant delayed about five months before moving the court; 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 allowed the change of advocates as an unopposed procedural matter. On extension of time, it observed that judgments should be released within five days of delivery, that the applicant had a right of appeal, that a draft Memorandum of Appeal had been annexed, and that the delay was occasioned by factors beyond her control, applying Njoroge v Kimani (2022) KECA 1188 (KLR). 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 appeal out of time should be granted

Holding

Leave granted; delay attributable to non-release of judgment and proceedings and the previous advocate's lack of diligence, not the applicant's indolence

Reasoning

The court noted the judgment of 6 November 2023 had not been released despite a request lodged on 30 November 2023, and that the previous advocate was not keen to pursue an appeal. The applicant had annexed a draft Memorandum of Appeal showing the intended appeal was not frivolous. Weighing the factors, the interests of justice tilted toward exercising discretion in her favour, and the court granted 30 days to file and serve the Memorandum of Appeal.

p. 2
02

Whether new advocates could come on record

Holding

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

Reasoning

The respondent raised no objection to the firm of Ombui Ratemo & Associates Advocates coming on record in place of Messrs Samuel N. Mainga & Co. Advocates. Absent objection, the court treated the change of advocates as a procedural matter and allowed it. This was handled separately from the substantive extension-of-time question.

p. 2

Legal principles established

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  • Courts should release or publicise a judgment or decision to the parties and Kenya Law Reports within 5 days of delivery
  • Where delay in filing an appeal is occasioned by factors beyond a litigant's control, interests of justice favour extension of time

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 26 June 2024
  3. 3.Costs of the application to abide the Appeal
On appeal from
Principal Magistrate's Court (ELRC), Kisii
Kisii MC ELRC No. E009 of 2022
Jurisdiction invoked
Inherent discretion to extend time; section 79G of the Civil Procedure Act and Rule 8(1) and (2) of the Employment and Labour Relations Court (Procedure) Rules, 2016 discussed

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, "Kenyanya v Nyangena Hospital Ltd (Miscellaneous Civil Application E053 of 2024) [2024] KEELRC 1611 (KLR)", Case Analysis (2024). Ruling on Motion dated 14 May 2024 (intended appeal from Kisii MC ELRC No. E009 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1611/eng@2024-06-26

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