Ongere v Babito General Contractors Limited (Miscellaneous Application E059 of 2023) [2024] KEELRC 2536 (KLR)
The bottom line
#A Kenyan employment court allowed an appeal filed months late because the worker never got notice of the original judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether good and sufficient cause was shown to warrant leave to appeal out of time
The Court allowed the application, finding good and sufficient cause demonstrated and that the intended appeal was not frivolous.
The Court noted that judgment was delivered on 6th January 2023 without notice to the parties, and the file remained in chambers until 14th February 2023, so the delay was not attributable to the Applicant or counsel. Section 79G's proviso permits admission of an out-of-time appeal on good and sufficient cause, and the Court's discretion was exercised in the Applicant's favour given the intended appeal raised substantial issues and was not frivolous.
Applicability of Section 79G of the Civil Procedure Act to the ELRC
By virtue of Article 162(2)(a) of the Constitution, the ELRC is a court of equal status with the High Court, so references to the High Court in Section 79G refer to this Court as well.
The Court construed Section 79G of the Civil Procedure Act together with Article 162(2)(a) of the Constitution and Rules 12 and 18 of the ELRC (Procedure) Rules 2024. Both the statute and the Rules require appeals from a Magistrate's Court to be filed within thirty days, with the proviso permitting admission out of time on good and sufficient cause, and Rule 18 allowing extension where circumstances justify.
Legal principles established
#- An applicant seeking extension of time to appeal out of time must demonstrate good and sufficient cause for not filing the appeal within time, and the ELRC has equal status with the High Court for purposes of Section 79G of the Civil Procedure Act.
Court orders
#- 1.Leave granted to the Applicant to appeal out of time against the Judgment of G. Kiage (Senior Resident Magistrate) dated 3rd January 2023 and delivered on 6th January 2023 in Mombasa Chief Magistrate's Court Employment Case No. 290 of 2021
- 2.A Memorandum of Appeal and a record of appeal shall be filed contemporaneously within thirty (30) days of the Ruling
- 3.Costs of the application shall be in the appeal
- On appeal from
- Chief Magistrate's Court, Mombasa
- Mombasa Chief Magistrate's Court Employment Case No. 290 of 2021 (Herman Mtundo Ongere -vs- Babito General contractors Limited)
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act; Section 79G of the Civil Procedure Act; Article 162(2)(a) of the Constitution; ELRC (Procedure) Rules, Rules 12 and 18
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongere v Babito General Contractors Limited (Miscellaneous Application E059 of 2023) [2024] KEELRC 2536 (KLR)", Case Analysis (2024). Misc Application No E059 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2536/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.