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ELRCDismissedELRC Appeal arising from Mombasa CMCC Civil Suit No. 281 of 2020 (Notice of Motion dated 9 July 2024)· [2024] KEELRC 2617 (KLR)

Atta (Kenya) Limited v Ngalama (Appeal E110 of 2024) [2024] KEELRC 2617 (KLR)

Employment and Labour Relations Court
24 October 2024
1,240 words in judgment
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The bottom line

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A Kenyan company lost its bid to pause an unfair dismissal award because its court application lacked a matching sworn statement and its appeal was filed too late.

What this practically means

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Executive summary

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The appellant, Atta (Kenya) Limited, moved the Employment and Labour Relations Court at Mombasa by a notice of motion dated 9 July 2024 seeking stay of execution of the judgment of 18 April 2024 in Mombasa CMCC Civil Suit No. 281 of 2020 (Daniel Ngalama v Atta (Kenya) Limited), which awarded the respondent 8 months' salary as compensation for unlawful termination, and enlargement of time to appeal out of time. The appellant claimed it only learned of the judgment through the respondent's letter of 17 May 2024. The respondent opposed, asserting the appellant was served and indolent. The court framed three issues: extension of time, stay of execution, and costs. It held that an application under Rule 17 of the ELRC (Procedure) Rules must be supported by an affidavit; here the grounds cited the affidavit of Paul Munyao but the affidavit filed was that of Victor Ouma, so the application stood without a supporting affidavit and its foundation was lost - a fatal blow. On extension of time, the court held that leave must first be sought by miscellaneous application; filing the appeal before obtaining leave negates Section 79G of the Civil Procedure Act and renders the appeal invalid. The delay from 17 May to 9 July 2024 was unexplained. The application was dismissed with costs to the respondent.

Key legal issues

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01

Validity of an application supported by the wrong affidavit

Holding

The application dated 9 July 2024 was fatal because the grounds referred to the affidavit of Paul Munyao but the affidavit filed was that of Victor Ouma

Reasoning

Rule 17 of the ELRC (Procedure) Rules requires an application to be supported by an affidavit. The affidavit on record did not correspond with the application, the respondent noted the variance, and the court held the application was without a supporting affidavit, destroying its foundation.

p. 2
02

Extension of time to file an appeal out of time

Holding

The court refused to enlarge time because the appeal had already been filed without leave and the delay was unexplained

Reasoning

Under Section 79G of the Civil Procedure Act an appeal should be filed within 30 days. Where time has lapsed, the correct practice is to first move the court by miscellaneous application seeking enlargement of time. Filing the appeal first negates the section, and here the appellant took nearly two months after notice of judgment to act.

p. 3
03

Stay of execution pending appeal

Holding

Stay was refused as consequential on the dismissal of the defective application

Reasoning

Since the application lacked a supporting affidavit and the appeal was itself invalidly on record, the applicant could not found an order for stay of the trial court's judgment awarding 8 months' salary for unlawful termination.

p. 3

Legal principles established

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  • An application under Rule 17 of the ELRC (Procedure) Rules must be supported by an affidavit; where the grounds and the supporting affidavit are at variance, the application fails
  • Leave to appeal out of time should be sought first through a miscellaneous application; filing an appeal before obtaining leave renders the appeal invalid
  • Leave to appeal out of time is not a matter of right; the applicant must justify the delay

Court orders

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  1. 1.The application dated 9 July 2024 is dismissed
  2. 2.Costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 79G, 95
  • Employment and Labour Relations Court (Procedure) RulesSections/Rules 3, 12, 17, 8
  • Civil Procedure RulesOrder 50 rule 5
  • Employment and Labour Relations Court ActSection 17

Cases cited (4)

  • Daniel N Mutua; Alfred Wambua Muange v Agnes Ndila Kanua
    (Civil Case 146 of 2002) [2004] KEHC
  • Makori v Barasa; Faulu Microfinance Bank Limited (Third party)
    (Environment and Land Appeal E017 of 2023) [2023] KEELC
  • Nicholas Kiptoo Arap Korir Salat v the Independent Electoral and Boundaries Commission & 7 others
    Application No. 16 of 2014
  • D I M v F W M
    (Misc. Application 33 of 2017) [2018] eKLR
On appeal from
Chief Magistrate's Court, Mombasa
CMCC Civil Suit No. 281 of 2020 - Daniel Ngalama v Atta (Kenya) Limited
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 79G and 95 of the Civil Procedure Act; Sections 3, 12 and 17 of the Employment and Labour Relations Court (Procedure) Rules; Order 50 rule 5 of the Civil Procedure Rules

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, "Atta (Kenya) Limited v Ngalama (Appeal E110 of 2024) [2024] KEELRC 2617 (KLR)", Case Analysis (2024). ELRC Appeal arising from Mombasa CMCC Civil Suit No. 281 of 2020 (Notice of Motion dated 9 July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2617/eng@2024-10-24

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