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ELRCDismissedApplication dated 8th March, 2023 in CMEL 2334A of 2019

Mbugua v Mountain View Estate Residents Association (Miscellaneous Application E051 of 2023) [2023] KEELRC 2481 (KLR)

Employment and Labour Relations Court
11 October 2023
ANABUODHA JORUM NELSON
869 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Nairobi refused to let a claimant file an appeal months late, because she delayed and filed no draft appeal.

What this practically means

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Executive summary

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The Claimant filed an application dated 8th March 2023 seeking leave to file an appeal out of the prescribed time against the dismissal of her claim in CMEL 2334A of 2019 before the magistrates' court. Her advocate, Otieno Oluoch, averred that the parties were told the judgment reserved on 28th September 2022 would be notified when ready; he discovered on 13th December 2022, through the Judiciary e-filing portal and the registry, that the judgment had been delivered on 31st October 2022 in the parties' absence, dismissing the claim. The Respondent opposed, asserting the judgment was delivered on 31st August 2022 by Hon. PM Kagoni, E.M with no orders as to costs, that no reasons or facts justified the four-month delay, and that the Claimant, as master of the suit, was indolent in following up the matter. The court identified Section 79G of the Civil Procedure Act as the operative provision and adopted the Court of Appeal's factors in Thuita Mwangi vs. Kenya Airways Limited. It applied Charles N. Ngugi v ASL Credit Limited to hold that the application was fatally defective because the intended appeal had not been filed or attached, rendering the application an afterthought and preventing assessment of arguability. The court further found the delay inordinate - over four months from judgment and over two months from discovery - and held that ignorance of the judgment was insufficient cause since the Claimant, as master of the suit, had produced no evidence of following up the matter. 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 Claimant has made out a case for enlargement of time to file an appeal out of the prescribed time under Section 79G of the Civil Procedure Act

Key legal issues

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01

Whether good and sufficient cause was shown for filing the appeal out of time

Holding

The application failed; delay was inordinate and the claim of ignorance of the judgment was insufficient

Reasoning

The court applied Section 79G of the Civil Procedure Act and the Thuita Mwangi factors. The Claimant's advocate discovered the dismissal on 13th December 2022 but only filed the application on 8th March 2023, an inordinate delay of over two months after discovery and over four months after delivery of the judgment. As Claimant in the lower court, she ought to have followed up the case, and no evidence of follow-up was produced.

p. 2
02

Whether an application for extension of time can succeed without the intended appeal being filed

Holding

It cannot; the intended appeal must be filed before or together with the extension application

Reasoning

Following Charles N. Ngugi v ASL Credit Limited, the court held that the application filed without the attached intended appeal meant arguability of the appeal could not be assessed, rendering the application an afterthought. The Claimant did not attach or file the intended appeal to illustrate its arguability, so the prayer to enlarge time failed on this independent ground.

p. 3

Legal principles established

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  • Under Section 79G of the Civil Procedure Act an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time
  • An intended appeal ought to have been filed before or together with an application seeking leave to extend time
  • The Thuita Mwangi factors (length and reason of delay, arguability, prejudice, compliance with time limits, effect on administration of justice) guide the discretion to extend time

Court orders

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  1. 1.The Claimant's Application dated 8th March, 2023 is found unmerited and is dismissed with costs

The bench

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

AN
majority

Wrote the judgment

On appeal from
null (intended appeal, not yet filed)
CMEL 2334A of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act (leave to appeal out of time)

Relief refused

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Leave to file appeal out of the prescribed time

The application was filed without the intended appeal; delay was inordinate and no sufficient cause for the delay was shown

p. 3

Costs

Application dismissed with costs (costs awarded 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.

In conclusion the Claimant’s Application dated 8th March, 2023 is found unmerited and is hereby dismissed with costs.
p. 3Final orders - dismissal of extension of time application
There is inordinate delay and no valid reasons for the delay has been given.
p. 3Insufficient cause for delay under Section 79G
the intended appeal ought to have already been filed before or together with an application seeking leave to extend time for filing an appeal.
p. 2Intended appeal must accompany extension application
Being the Claimant in the lower court they ought to have followed up with their case. No evidence has been produced to show they followed up on the matter.
p. 2Duty of a litigant to follow up its own suit

Issues in the judgment

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minor

The judgment contains conflicting dates for the delivery of the lower court judgment - the application states 31st October 2022, the Respondent's replying affidavit states 31st August 2022, and paragraph 6 also records the dismissal as '31st, August, 2022'

minor

The parties' names are not given in the judgment, which refers only to 'Claimant' and 'Respondent'

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, "Mbugua v Mountain View Estate Residents Association (Miscellaneous Application E051 of 2023) [2023] KEELRC 2481 (KLR)", Case Analysis (2023). Application dated 8th March, 2023 in CMEL 2334A of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2481/eng@2023-10-11

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