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ELRCAllowedMotion filed 14 May 2024 in intended appeal from Kisii MC ELRC No. E011 of 2022

Mayienda v Nyangena Hospital Ltd (Miscellaneous Civil Application E054 of 2024) [2024] KEELRC 1612 (KLR)

Employment and Labour Relations Court
26 June 2024
RSRadido Stephen
675 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, Rose Gesare Mayienda, 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 appeal out of time against the judgment and decree in Kisii MC ELRC No. E011 of 2022, in which judgment was delivered on 6 November 2023. She argued that the delay was inadvertent and excusable because she could not secure a copy of the judgment and proceedings, her former advocate was not keen to pursue an appeal, and the intended appeal, evidenced by an annexed draft Memorandum of Appeal, was meritorious. The Respondent, through a replying affidavit of 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 J allowed the change of advocates as unopposed and, noting the performance standard that judgments be released within five days of delivery and that delay occasioned by factors beyond the applicant's control is excusable (applying Njoroge v Kimani), held the interests of justice favoured extending time. He granted leave to file and serve a Memorandum of Appeal within 30 days, with costs of the application to abide the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the firm of Ombui Ratemo & Associates Advocates should be granted leave to come on record in place of the previous advocates
  2. 2.Whether the applicant should be granted leave to file appeal out of time against the judgment and decree in Kisii MC ELRC No. E011 of 2022

Key legal issues

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01

Whether leave to appeal out of time should be granted

Holding

Leave granted; the delay was explained by the non-release of the judgment and proceedings and the previous advocate's lack of keenness, and the interests of justice favoured exercising discretion in the applicant's favour.

Reasoning

The applicant had a right of appeal against the Principal Magistrate's judgment. She annexed a draft Memorandum of Appeal showing the intended appeal was not frivolous. The trial court's delay in releasing the judgment, and the prior advocate's inaction, meant the delay was not attributable to her. The Court criticised the late release of judgments while acknowledging resource constraints, and held the interests of justice tilted toward granting leave, allowing 30 days to file and serve the Memorandum of Appeal.

p. 2
02

Change of advocates on record

Holding

Unopposed; the new firm was allowed on record as a matter of procedure.

Reasoning

The Respondent raised no objection to Ombui Ratemo & Associates Advocates replacing Samuel N. Mainga & Co. Advocates, so the Court allowed the change purely as a procedural matter, without needing to consider the substantive test for substitution of advocates.

p. 2

Legal principles established

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  • It is a performance standard that judgments should be released or publicised to parties and Kenya Law Reports within 5 days of delivery
  • Delay occasioned by factors beyond a litigant'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
  3. 3.Costs of the application to abide the Appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RS
majority

Wrote the judgment

On appeal from
Principal Magistrate's Court (Kisii)
Kisii MC ELRC No. E011 of 2022
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Employment and Labour Relations Court (Procedure) Rules, 2016 (extension of time discretion)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The firm of Ombui Ratemo & Associates Advocates is allowed to come on record for the applicant.
p. 2final orders - change of advocates
The applicant is granted leave to file and serve a Memorandum of Appeal within 30-days from today.
p. 2final orders - extension of time
It has now become a performance standard in this jurisdiction that a Court should release or publicise a judgment or decision to the parties and Kenya Law Reports within 5 days of delivery.
p. 2timely release of judgments
In the Court's view, the interests of justice tilt towards exercising the Court's discretion in favour of the applicant.
p. 2discretion and interests of justice

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, "Mayienda v Nyangena Hospital Ltd (Miscellaneous Civil Application E054 of 2024) [2024] KEELRC 1612 (KLR)", Case Analysis (2024). Motion filed 14 May 2024 in intended appeal from Kisii MC ELRC No. E011 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1612/eng@2024-06-26

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