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ELRCDismissedNot stated in the judgment

Kenya National Union of Nurses v Kenyatta National Hospital & another (Cause E706 of 2021) [2025] KEELRC 506 (KLR)

Employment and Labour Relations Court
24 February 2025
833 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant filed an application dated 18th January 2024 seeking leave to file a Notice of Appeal out of the prescribed time and an order that the attached Notice of Appeal be deemed duly filed. Through the affidavit of its Industrial Relations Officer, David Omulama, the Claimant explained that judgment in the main suit was delivered on 28th September 2023 at Mombasa without notice of the judgment date being served on it, so it did not attend court and only learned of the judgment on 14th November 2023, after the 30-day window had lapsed. It argued it would suffer irreparable prejudice if locked out of its right of appeal. The 2nd Respondent, through its Secretary General Albert Njeru Obed, opposed the application, asserting that the registry confirmed judgment notices were sent to parties by text message through the CTS filing system, and termed the application an afterthought. In submissions the Claimant maintained that no screenshot or other proof of the text message was produced, that its letter of 18th March 2024 to the Deputy Registrar seeking evidence of service was never answered, and that its failure to attend was not deliberate. The Respondents filed no written submissions. The court invoked Rule 77 of the Court of Appeal Rules 2022, requiring a Notice of Appeal within fourteen days of the decision, which in this case expired on 12th October 2023. It declined to analyse the merits of the application, holding that the applicable rules are Court of Appeal rules and the application ought to have been made at the Court of Appeal, where leave would in any event still be required. The application was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the court issued judgment notice for 28/9/2023
  2. 2.Whether the Claimant should be granted leave to file Notice of Appeal out of the prescribed time

Key legal issues

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01

Whether the ELRC had the competence to grant leave to file a Notice of Appeal out of time where the appeal lies to the Court of Appeal

Holding

The application was unmerited because the applicable rules are the Court of Appeal Rules 2022 and the leave application should have been made to the Court of Appeal itself

Reasoning

The court invoked Rule 77 of the Court of Appeal Rules 2022, which requires a Notice of Appeal within fourteen days of the decision. The judgment was delivered on 28th September 2023, so time expired on 12th October 2023. The court declined to analyse the merits of the application, holding that because the intended appeal lies to the Court of Appeal, the application should have been made in that court, and even if granted, leave would still have to be sought there.

p. 2
02

Whether the Claimant was notified of the judgment date

Holding

The court did not make any finding on this factual dispute, having declined to consider the merits

Reasoning

The Claimant averred that no notice of the judgment date was served and that it learned of the judgment on 14th November 2023. The 2nd Respondent countered that judgment notices were sent by text message through the CTS filing system. The Claimant submitted the alleged text message was unproved hearsay. The court expressly declined to analyse these merits, disposing of the application on the forum point alone.

p. 2

Legal principles established

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  • An application for leave to file a Notice of Appeal out of time under the Court of Appeal Rules 2022 ought to be made to the Court of Appeal, not the Employment and Labour Relations Court.

Court orders

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  1. 1.The Claimant's Application dated 18th January, 2024 is dismissed with costs

The bench

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

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court procedure; application brought under Court of Appeal Rules 2022 Rule 77 regime for extension of time to file Notice of Appeal

Relief refused

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Leave to file Notice of Appeal out of the prescribed time and deeming of the attached Notice of Appeal as duly filed

The application was for extension of time under the Court of Appeal Rules and ought to have been made at the Court of Appeal, which is where any such leave would still be required

p. 2

Costs

The application is dismissed with costs (to the 2nd 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.

In conclusion the Claimant's Application dated 18th January, 2024 is found unmerited and is hereby dismissed with costs.
p. 2Final orders - dismissal of the application
It is so ordered.
p. 3Disposition
The Application therefore ought to have been made at that court.
p. 2Forum for extension of time to file Notice of Appeal
A person who desires to appeal to the Court shall give notice in writing, which notice shall be lodged in two copies, with the registrar of the superior court.
p. 2Rule 77 Court of Appeal Rules 2022 - Notice of Appeal

Issues in the judgment

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minor

The judgment refers to a 2nd Respondent's Replying Affidavit but the 1st Respondent is never identified anywhere in the ruling, and the Respondents' written submissions are noted as not filed yet the heading 'Respondents' Submissions' still appears.

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, "Kenya National Union of Nurses v Kenyatta National Hospital & another (Cause E706 of 2021) [2025] KEELRC 506 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/506/eng@2025-02-24

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