Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedMisc Application No E059 of 2023· [2024] KEELRC 2536 (KLR)

Ongere v Babito General Contractors Limited (Miscellaneous Application E059 of 2023) [2024] KEELRC 2536 (KLR)

Employment and Labour Relations Court
18 October 2024
918 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

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

#
This is a ruling of the Employment and Labour Relations Court at Nairobi, delivered by Agnes Kitiku Nzei, Judge, on 18th October 2024, on the Applicant's Notice of Motion dated 11th December 2023 seeking leave to appeal out of time against a judgment of G. Kiage, Senior Resident Magistrate, delivered on 6th January 2023 in Mombasa MC ELR Case No. 290 of 2021. The application was brought under Section 12 of the ELRC Act, Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. The Applicant deponed that judgment was delivered without notice to the parties, that the court file remained in chambers until 14th February 2023, and that the delay was not attributable to him or his counsel. The Respondent opposed the application, and both parties filed written submissions. The Court considered Section 79G of the Civil Procedure Act, which allows admission of an appeal out of time where the applicant shows good and sufficient cause, holding that by dint of Article 162(2)(a) of the Constitution the ELRC is of equal status with the High Court for this purpose. It also considered Rules 12 and 18 of the ELRC (Procedure) Rules 2024. The Court was satisfied that good and sufficient cause had been demonstrated and that the intended appeal was not frivolous, and accordingly allowed the motion: leave to appeal out of time was granted, a memorandum of appeal and record of appeal were to be filed contemporaneously within thirty days, and costs of the application were to abide the appeal.

Key legal issues

#
01

Whether good and sufficient cause was shown to warrant leave to appeal out of time

Holding

The Court allowed the application, finding good and sufficient cause demonstrated and that the intended appeal was not frivolous.

Reasoning

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.

p. 2
02

Applicability of Section 79G of the Civil Procedure Act to the ELRC

Holding

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.

Reasoning

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.

p. 2

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. 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. 2.A Memorandum of Appeal and a record of appeal shall be filed contemporaneously within thirty (30) days of the Ruling
  3. 3.Costs of the application shall be in the appeal

Authorities

#

Legislation

  • Employment and Labour Relations Court ActSection 12
  • Civil Procedure ActSection 79G (and proviso)
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 50 Rule 6
  • Employment and Labour Relations Court (Procedure) Rules 2024Rule 12
  • Employment and Labour Relations Court (Procedure) Rules 2024Rule 18
  • Constitution of Kenya 2010Article 162(2)(a)
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.