Teachers Service Commission v Macharia (Miscellaneous Application E190 of 2023) [2024] KEELRC 1739 (KLR)
The bottom line
#Kenya's Employment Court allowed an employer to appeal late against permission for a delayed claim, stressing courts will hear litigants who move within a reasonable time.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant should be granted leave to appeal out of time against the ruling of Hon. Omodho (P.M) delivered on 12th July, 2023
- 2.Whether the proceedings in Nairobi CM ELRC No. E1539 of 2023 should be stayed pending the intended appeal
- 3.Whether the delay in filing the appeal was inordinate and adequately explained
- 4.Whether the intended appeal is arguable
- 5.Whether the Respondent would suffer prejudice if the extension is granted
Key legal issues
#Extension of time to file appeal
The delay of about two weeks after service of the order was not inordinate, was explained, the appeal was arguable on the section 90 Employment Act limitation point, and the Respondent would not suffer such prejudice as to defeat justice; leave to appeal out of time was granted.
Applying Section 79G of the Civil Procedure Act and the Thuita Mwangi factors, the court found the delay was barely two months and only about two weeks from service of the order, which counsel explained (diarising error). The draft memorandum raised arguable grounds, notably whether the claim was time-barred under section 90 of the Employment Act. The Respondent's need to prosecute his claim was outweighed by the Applicant's point of law requiring determination.
Stay of proceedings pending appeal
The conditions in Order 42 Rule 6 were satisfied: no unreasonable delay, substantial risk of rendering the appeal nugatory, and security was inapplicable since the orders were not monetary; stay of the proceedings was granted.
Relying on Order 42 Rule 6 and the authorities on substantial loss, the court reasoned that allowing the Respondent to prosecute his claim while the appeal on limitation was pending would prejudicially render the appeal nugatory if the Applicant succeeded. Since the lower court orders were not for damages or amounts, security was not applicable. The application met the conditions for stay.
Legal principles established
#- An appeal under Section 79G of the Civil Procedure Act may be admitted out of time if the appellant shows good and sufficient cause for the delay.
- This court will not shut out a litigant who approaches it within a reasonable time.
Court orders
#- 1.The Applicant is allowed to file the Appeal out of time
- 2.Stay of proceedings in CMELRC No. 1539 of 2023 until the issues raised in the Applicant's appeal are ventilated
- 3.Costs shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 25, 150, 159 and 165(6) & (7) of the Constitution; Sections 1B, 3A, 75 and 79G of the Civil Procedure Act; Order 42 Rule 6(1) and 8 of the Civil Procedure Rules; Section 90 of the Employment Act; Section 12 of the Employment and Labour Relations Court Act
Relief refused
#Security for costs / security for due performance
The orders of the lower court were not in terms of any damages or amounts, so the security requirement was inapplicable
Costs
Costs shall be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find this period not to be inordinate delay and counsel has explained the reason for the delay.
In the upshot I allow the Applicant to file the Appeal out of time.
It would be in the interest of justice to stay the said proceedings in CMELRC NO.1539 of 2023 until the issues the Applicant has raised in its appeal are ventilated. This will avoid rendering the appeal nugatory.
This court is not in the habit of shunning away a litigant unheard when they approach a court within a reasonable time.
The application is therefore found with merit and is hereby allowed. Costs shall be in the cause. It is so ordered.
Issues in the judgment
#The judgment recites the application as brought under 'Section 59 of the Employment and Labour Relations Court' but elsewhere cites 'Section 12 of the Employment and Labour Relations Court' - the section references are internally inconsistent and one appears to be an error.
The Respondent cites 'section 59 of the Employment and Labour Relations Court(Procedure) Rules 2016' while the Applicant's application is cited under different provisions, creating inconsistency in the cited enabling provision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teachers Service Commission v Macharia (Miscellaneous Application E190 of 2023) [2024] KEELRC 1739 (KLR)", Case Analysis (2024). Nairobi CM ELRC No. E1539 of 2023 (related application dated 15th September 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1739/eng@2024-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.