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ELRCDismissedApplication dated 15th December, 2023 (arising from CMEL No. 860 of 2021)

Saronge & another v Samco Holdings Limited t/a Eka Hotel (Employment and Labour Relations Appeal 264 of 2023) [2024] KEELRC 2486 (KLR)

Employment and Labour Relations Court
11 October 2024
1,389 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to let two former employees appeal three months late, ruling their delay was unexplained and the employer had already paid the judgment in full.

What this practically means

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Executive summary

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The Intended Appellants/Applicants filed an application dated 15th December 2023 seeking leave to file an appeal out of time against part of the judgment of Hon. Hosea Mwangi in CMEL No. 860 of 2021 (Thomas Odhiambo Saronge & Another v Samco Holdings Limited T/A EKA Hotel), delivered virtually on 21st September 2023, and that the attached appeal be deemed duly filed. They blamed the delay on non-supply of the decree and typed proceedings, attaching a letter requesting them. The Respondent opposed, averring that the delay of three months was inordinate and unexplained; that the letter requesting proceedings was never uploaded on the e-filing portal, paid for or served, and was drafted to mask indolence; and that the Applicants had already collected and accepted their decretal dues of Kshs 37,370 and Kshs 46,917.34, so could not reopen the judgment. In a further affidavit the Applicants denied the delay was deliberate and asserted their right of appeal. Guided by the Court of Appeal's factors in Thuita Mwangi v Kenya Airways and Charles N. Ngugi v ASL Credit Limited, the court found the delay inordinate and unexplained, held that failure to prove payment and filing of the letter requesting proceedings showed it was an afterthought, noted that a memorandum of appeal can be filed upon receipt of the judgment without typed proceedings, and found that the appeal, which touched on the fairness of termination and declined awards, would greatly prejudice a Respondent who had paid the decretal sum in full. The application was dismissed with costs on 11th October 2024.

Questions the Court framed

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

  1. 1.Whether the Applicants should be granted leave to file an appeal out of time and have the attached appeal deemed as duly filed

Key legal issues

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01

Whether the Applicants satisfied the criteria for extension of time to file an appeal

Holding

The application was dismissed: the three-month delay was inordinate, the explanation (non-supply of typed proceedings) was unsubstantiated because the letter requesting proceedings was not proved to have been filed or paid for and was an afterthought, and allowing the appeal would prejudice the Respondent who had already paid the decretal sum in full.

Reasoning

The court applied the Thuita Mwangi factors. It found the Applicants failed to rebut the Respondent's allegations that the letter requesting typed proceedings was never uploaded on the e-filing portal, paid for, or served, showing it was drafted to suit their convenience. The judgment was already typed at delivery and available at the registry, so typed proceedings were not a prerequisite for filing a memorandum of appeal. Further, the memorandum of appeal, though claiming not to challenge the sums paid, in fact touched on the fairness of termination and sums declined, so granting leave would prejudice a Respondent who had complied with the judgment.

p. 3

Legal principles established

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  • An application to enlarge time must not be brought inordinately late and must be founded on sound and excusable grounds; the intended appeal should ideally already be filed before or with the extension application
  • In exercising the discretion to extend time, the court considers the period and reason for delay, arguability of the appeal, prejudice to the respondent, importance of compliance with time limits, and effect on the administration of justice

Court orders

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  1. 1.The Applicants' Application dated December 15, 2023 is dismissed with costs

The bench

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

Wrote the judgment

On appeal from
Magistrates' Court (CMEL No. 860 of 2021)
CMEL No. 860 of 2021
Jurisdiction invoked
Inherent discretion to enlarge time to file an appeal out of time

Relief refused

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Leave to file appeal out of time and deeming of the attached appeal as duly filed

The delay was inordinate and unexplained; the letter requesting typed proceedings was an afterthought; the appeal would prejudice the Respondent who had paid the decretal sum in full

p. 4

Costs

Dismissed with costs (costs to the Respondent)

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.

It is correct that an application to enlarge time to file an appeal must not be brought inordinately late and the grounds upon which the application is based must be sound and excusable.
p. 3Extension of time - threshold
In conclusion the Applicants' Application dated December 15, 2023 is found without merit and is hereby dismissed with costs.
p. 4Final orders - dismissal

Issues in the judgment

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minor

Paragraph numbering repeats: two consecutive paragraphs are both numbered 16

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, "Saronge & another v Samco Holdings Limited t/a Eka Hotel (Employment and Labour Relations Appeal 264 of 2023) [2024] KEELRC 2486 (KLR)", Case Analysis (2024). Application dated 15th December, 2023 (arising from CMEL No. 860 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2486/eng@2024-10-11

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