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ELRCAllowedNotice of Motion dated 17th March 2025 in intended appeal from Thika Misc. Civil Case No. E006 of 2024· [2025] KEELRC 2335 (KLR)

Bidco Africa Limited v Muthembwa (Employment and Labour Relations Appeal E078 of 2025) [2025] KEELRC 2335 (KLR)

Employment and Labour Relations Court
30 July 2025
JKJ. W. Keli
3,547 words in judgment
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The bottom line

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Kenya's Employment Court paused an unfair dismissal claim against Bidco Africa, ruling that a lower court may have overstepped by extending the legal filing deadline.

What this practically means

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Executive summary

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Bidco Africa Limited, the applicant, sought leave to file an appeal out of time against the ruling of Yusuf Barasa Mukhula, Principal Magistrate, delivered on 13th November 2024 in Thika Misc. Civil Case No. E006 of 2024, together with stays of execution and of further proceedings in the resulting suit, Thika CMELRC E001 of 2025. The ruling had granted the respondent ex parte leave to file an unfair termination claim out of time under section 90 of the Employment Act. The applicant contended that the trial court lacked jurisdiction to extend time under that mandatory provision, that the extension application was heard ex parte without service, and that it only learned of the orders upon service on 19th February 2025, hence the delay in appealing. The respondent opposed, asserting the trial court properly exercised its discretion and that the applicant had shown no substantial loss. The court framed two issues: whether leave to appeal out of time was merited, and whether the subordinate proceedings should be stayed. Applying Rule 18 of the ELRC (Procedure) Rules, 2024, section 79G of the Civil Procedure Act, and the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC, the court found the approximately three-month delay adequately explained, an arguable jurisdictional point raised, and no prejudice to the respondent. It held that limitation touches the root of jurisdiction, and stayed both execution of the ruling and further proceedings pending appeal. The application was allowed, with costs awarded to the respondent, and the matter set for mention on 12th August 2025 for directions on the record of appeal.

Key legal issues

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01

Whether leave to file the appeal out of time should be granted

Holding

Leave granted: the applicant only learned of the ex parte ruling on service on 19th February 2025, giving a good and sufficient reason for the approximately 3-month delay, and an arguable point of law on jurisdiction was raised; the respondent would suffer no prejudice.

Reasoning

The court applied Rule 18 of the ELRC (Procedure) Rules, 2024 and section 79G of the Civil Procedure Act, and the Salat principles. The delay was explained by the ex parte nature of the lower court ruling. The ruling had serious consequences, touching limitation under section 89 (formerly 90) of the Employment Act, and limitation goes to jurisdiction. No prejudice would befall the respondent, who would have ample opportunity to defend the appeal.

p. 6
02

Whether the lower court proceedings in Thika CMELRC E001 of 2025 should be stayed

Holding

Stay of proceedings granted pending the appeal, because if the ELRC on appeal holds that the trial court lacked jurisdiction to extend time under section 90 of the Employment Act, all action by the lower court would be null and void.

Reasoning

Balancing the respondent's personal hardships against the jurisdictional defect, the court held that limitation is at the root of jurisdiction. Allowing the subordinate court to proceed would waste judicial time if the appellate court later holds the trial court lacked jurisdiction to extend time under section 90 of the Employment Act.

p. 7

Legal principles established

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  • The discretion to extend time is unfettered but must be exercised on the Salat principles: the applicant must explain the delay, show good and sufficient cause, and the extension must serve the ends of justice without prejudice to the respondent.
  • Time limitation touches the root of a court's jurisdiction, and where jurisdiction is lacking, proceedings before the subordinate court must be stayed pending appeal.

Court orders

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  1. 1.Pending the hearing and determination of the intended appeal, a stay of execution and/or enforcement of the ruling and orders of the Chief Magistrates Court at Thika delivered on 13th November 2024 in Thika Misc. Civil Case No. E006 of 2024
  2. 2.Pending the hearing and determination of the appeal, a stay of any further proceedings in Thika CMELRC E001 of 2025: Stephen Mutua Muthembwa v Bidco Africa Limited
  3. 3.Costs of the application to the respondent
  4. 4.Mention on 12th August 2025 before the court Deputy Registrar for directions on filing of record of appeal

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 3
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rules 12, 18, 21, 45, 47, 64(1)(2), 73(2), 80
  • Civil Procedure ActSections 1A, 1B, 3A, 63(e), 79G
  • Civil Procedure Rules, 2010Order 42 Rule 6(2), Order 50 Rule 6
  • Employment ActSection 90 (formerly 90/89)
  • Limitation of Actions ActSection 4(1)

Cases cited (2)

  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & Others
    [2014] eKLR
  • Kenya Ports Authority v Silas Obengele
    Civil Application No Nai 297 of 2004 [2006] 2 KLR 112
On appeal from
Chief Magistrates Court at Thika
Thika Misc. Civil Case No. E006 of 2024
Jurisdiction invoked
Section 3 of the Employment and Labour Relations Court Act; Rules 18, 21, 45 and 47 of the Employment and Labour Relations Court (Procedure) Rules, 2024; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

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, "Bidco Africa Limited v Muthembwa (Employment and Labour Relations Appeal E078 of 2025) [2025] KEELRC 2335 (KLR)", Case Analysis (2025). Notice of Motion dated 17th March 2025 in intended appeal from Thika Misc. Civil Case No. E006 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2335/eng@2025-07-30

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