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ELRCDismissedNotice of Motion dated 14th November 2024 (in relation to Mombasa CMELRC Cause No. E078 of 2021)· [2025] KEELRC 1966 (KLR)

Severin Sea Logde v Mwanyanje (Miscellaneous Case E118 of 2024) [2025] KEELRC 1966 (KLR)

Employment and Labour Relations Court
26 June 2025
2,277 words in judgment
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The bottom line

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A Kenyan court dismissed an attempt to delay an employment case, ruling that forcing a magistrate to release a ruling requires judicial review, not an extension-of-time application.

What this practically means

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Executive summary

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The Applicant (defendant in Mombasa CMELRC Cause No. E078 of 2021) moved the Employment and Labour Relations Court by Notice of Motion dated 14th November 2024 seeking stay of proceedings before the Chief Magistrate's Court at Mombasa, leave to appeal out of time against the ruling of Hon. Noelyne Reuben Akee delivered on 15th August 2024 reinstating the Respondent's suit, and an order that it be furnished with certified copies of the ruling and proceedings. The Applicant explained that the Respondent's suit had been dismissed for want of prosecution on 8th May 2023 after the Respondent's counsel failed to attend; reinstatement was granted on 15th August 2024, but the ruling and proceedings were never supplied despite repeated requests, which the Applicant attributed to administrative error. The Respondent opposed, contending that there was no arguable appeal or demonstration of substantial loss, that his non-attendance resulted from the matter being mislisted before Hon. D.W. Mburu, and that no security had been offered under Order 42 Rule 6. The court, sua sponte, identified a vital point counsel had ignored: the prayer compelling supply of the ruling. It held that a magistrate can only be compelled to furnish a ruling by an order of mandamus in judicial review proceedings, not in the present application. The court further found the Applicant had not demonstrated an arguable appeal, since the impugned decision was not before it; and even on the merits, the cause lists showed the matter was mislisted before another magistrate through no fault of the Respondent, justifying reinstatement. Declining to consider the remaining extension-of-time factors, the court dismissed the application with costs.

Key legal issues

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01

Proper procedural avenue for compelling a magistrate to furnish a delivered ruling

Holding

The Court lacks jurisdiction in an application for extension of time and stay to compel the magistrate to supply the ruling; that relief lies only in judicial review by mandamus.

Reasoning

The court reasoned that the Applicant's application alleged a failure by the learned Magistrate to perform a duty the law required. Such a public-law duty can only be enforced by mandamus under a judicial review application, where leave may also be sought to act as a stay of proceedings. The Applicant therefore approached the Court through the wrong process, and the court could not entertain the prayer for certified copies of the ruling and proceedings in the present application.

p. 4
02

Whether the intended appeal is arguable

Holding

The Applicant did not demonstrate an arguable appeal; even on the merits, the magistrate's reinstatement was justified by the mislisting of the cause on the hearing date.

Reasoning

Since the ruling intended to be challenged was never furnished, the court could not assess arguability. Even assuming otherwise, the two cause lists for 8th May 2023 showed the matter was listed before Hon. D.W. Mburu and not Hon. Akee; counsel attended where the matter was listed, and the confusion was administrative and not of the Respondent's making. Any court could have granted reinstatement in such circumstances, so the intended appeal was not arguable.

p. 5
03

Whether to consider the remaining extension-of-time factors (length of delay, prejudice)

Holding

Having found no arguable appeal and an improper procedural approach, the court declined to consider the other factors.

Reasoning

The court noted that counsel's submissions did not address the vital point of how the ruling could be obtained, and that the Applicant failed even to present the Respondent's application and replying affidavit to ground the factual basis of the application. Submissions were eloquent on facts that could only be discerned from the record before the magistrate. With the threshold issues decided against the Applicant, expending time on delay and prejudice was unnecessary.

p. 5

Legal principles established

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  • A trial magistrate's failure to supply a delivered ruling can only be compelled by an order of mandamus sought in judicial review proceedings, not in an interlocutory application for extension of time and stay.
  • An applicant for leave to appeal out of time cannot establish that the appeal is arguable where the decision intended to be challenged is not before the court.
  • Submissions are not evidence; factual matters must be discerned from documents filed and the ruling of the trial court.
  • Counsel is reasonably expected to attend the court where his or her client's matter is listed; where the matter was mislisted through no fault of a party, reinstatement is appropriate.

Court orders

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  1. 1.The Applicant's Notice of Motion dated 14th November 2024 is dismissed with costs
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 53

Cases cited (5)

  • Paul Musili Wambua v Attorney General & 2 Others
  • NCBA Bank Limited v WWss Logistics
    [Civil Appeal E277 of 2023] [2024] KEHC 1613 [KLR]
  • Thatiani Development Company Limited v Mombasa Water & Sewerage Company & Anor
    [2022] eKLR
  • Kenya Shell Ltd v Benjamin Karuga Kibiru & Another
    [1986] EKLR
  • Machira t/a Machira & Company Advocates v East Africa Standard
    [2002] eKLR
On appeal from
Chief Magistrate's Court at Mombasa (Employment and Labour Relations Cause No. E078 of 2021)
E078 of 2021
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to appeal) and Order 42 Rule 6 of the Civil Procedure Rules (stay of proceedings)

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, "Severin Sea Logde v Mwanyanje (Miscellaneous Case E118 of 2024) [2025] KEELRC 1966 (KLR)", Case Analysis (2025). Notice of Motion dated 14th November 2024 (in relation to Mombasa CMELRC Cause No. E078 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1966/eng@2025-06-26

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