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ELRCDismissedNot stated in judgment

Alexander Kasina Mukala v Kenya Power & Lighting Company [2021] KEELRC 1476 (KLR)

Employment and Labour Relations Court of Kenya
18 February 2021
1,306 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Employment Court ruled it cannot extend time to appeal its own judgment — once it delivers judgment, its only path upward is the Court of Appeal.

What this practically means

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Executive summary

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The claimant, who had obtained a judgment award of Ksh.637,312 with costs and interest delivered on 9th October 2018, filed three applications (dated 30th September 2020, 3rd November 2020 and 5th November 2020) seeking leave to file an appeal and counter-appeal out of time and leave to be properly on record. He explained that his former advocates, E.K. Mutua & Co. Advocates, never disclosed the judgment contents until execution commenced, leading him to file a Notice to Act in Person on 12th March 2020. He cited Rule 8 of the ELRC (Procedure) Rules, 2016 and section 95 of the Civil Procedure Act, and relied on authorities including Belinda Murai v Amos Winaina on advocates' mistakes. The respondent opposed through grounds of opposition and submissions, citing inordinate delay per Mohamed Shally Sese and Samuel Mwaura Muthumbi, noting it had itself filed a Notice of Appeal and obtained a stay on 20th February 2019. The court framed the core issue as whether to grant leave to appeal out of time. Holding that it stood functus officio after judgment and the stay ruling, it held Rule 8 governs only appeals to the ELRC from subordinate courts and statutory officers, not appeals against its own decisions; recourse lies under section 17 of the ELRC Act, 2011 to the Court of Appeal per Article 164(3). The applications were dismissed with costs to the respondent.

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 should grant leave to the claimant to file an appeal/counter appeal out of time
  2. 2.Whether the court retains jurisdiction, post-judgment and post-ruling, to enlarge time for filing an appeal against its own decision

Key legal issues

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01

Jurisdiction to enlarge time to appeal against the court's own judgment

Holding

The court lacks jurisdiction; having rendered itself on the judgment and the ruling on stay, it is functus officio and the leave sought cannot issue

Reasoning

The court held that once it delivered judgment on 9th October 2018 and a ruling on stay on 20th February 2019, it had exhausted its mandate. The claimant's remedy against the judgment is an appeal to the Court of Appeal under section 17 of the ELRC Act, 2011 read with Article 164(3) of the Constitution, not an application back to the same court. Rule 8 of the Court Rules governs appeals lodged with the ELRC from subordinate courts and statutory officers, not appeals from its own decisions.

p. 3
02

Scope of Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Holding

Rule 8 applies to appeals to the ELRC from subordinate courts, the Registrar of Trade Unions and the Director of Occupational Health and Safety, not to appeals against ELRC judgments

Reasoning

The court analysed the Rule and held that appeals to the ELRC can only emanate from subordinate courts and from decisions of the Registrar of Trade Unions under the Labour Relations Act, 2007 and the Director of Occupational Health and Safety under the Work Injury Benefits Act, 2007. Reading Rule 8 as permitting an appeal against the court's own judgment would be a serious misreading of the law. Section 8 of the Civil Procedure Act on enlargement of time must be read in the same context.

p. 3

Legal principles established

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  • The ELRC is functus officio after delivering judgment and any appeal against its decisions lies to the Court of Appeal under section 17 of the ELRC Act and Article 164(3) of the Constitution
  • Rule 8 of the ELRC (Procedure) Rules, 2016 does not regulate appeals against the ELRC's own judgments; it governs appeals lodged with the court from subordinate courts and statutory bodies

Court orders

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  1. 1.Applications filed by the claimant seeking leave to file appeal and/or counter-appeal out of time are dismissed
  2. 2.Costs to the respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 17 of the Employment and Labour Relations Court Act, 2011 and Article 164(3) of the Constitution (appeals lie to the Court of Appeal); original jurisdiction under the ELRC Act and Court Rules

Relief refused

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Leave for the claimant to be properly on record and file his appeal/counter-appeal out of time

The court had become functus officio after delivering judgment and ruling on stay; appeals against ELRC decisions lie to the Court of Appeal, and Rule 8 of the Court Rules does not regulate appeals against the court's own decisions

p. 3

Costs

Costs to the 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.

On the judgement and ruling on stay of execution, the court stood functus officio. It had rendered itself.
p. 3functus officio
This rule does not regulate appeals against the judgement and orders from the court itself. To take it as such would be a serious misreading of the law.
p. 3scope of Rule 8 ELRC Procedure Rules
The court having rendered itself, the orders sought to extend time to file an appeal and or a counter appeal out of time is denied of this court. Such orders cannot issue through whatever craft. The court lack such mandate and jurisdiction.
p. 3denial of leave to appeal out of time
Accordingly, applications filed by the claimant seeking leave to file appeal and or counter-appeal out of time are hereby dismissed. Costs to the respondent.
p. 3final orders

Issues in the judgment

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minor

The judgment states two different delivery dates for the judgment: 9th October 2018 in the grounds and submissions, but 19th October 2018 in the Determination

minor

The claimant's submissions cite section 95 of the Civil Procedure Act for enlargement of time, while the determination analyses section 8 of the same Act

minor

The respondent's submissions attribute section 8(2) of the Civil Procedure Act as prescribing time for lodging an appeal, an apparently mistaken citation

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, "Alexander Kasina Mukala v Kenya Power & Lighting Company [2021] KEELRC 1476 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1476/eng@2021-02-18

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