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ELRCAllowedELRC Motion (filed 14 May 2024, Kisii MC ELRC No E007 of 2022 appeal)

Osoro v Nyangena Hospital Ltd (Miscellaneous Civil Application E049 of 2024) [2024] KEELRC 1609 (KLR)

Employment and Labour Relations Court
26 June 2024
675 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court excused a five-month appeal delay because court records weren't released on time, letting the worker appeal a lost employment case.

What this practically means

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Executive summary

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The applicant, Everline Ongubo Osoro, moved the Employment and Labour Relations Court by Motion filed on 14 May 2024 seeking, principally, leave for the firm of Ombui Ratemo & Associates Advocates to come on record in place of Messrs Samuel N. Mainga & Co. Advocates, and leave to file an appeal out of time against the judgment and decree in Kisii MC ELRC No E007 of 2022 (judgment delivered 6 November 2023). The respondent, Nyangena Hospital Ltd, opposed in a replying affidavit sworn by its General Manager, contending that the applicant's request for certified proceedings was lodged only days before the 30-day appeal window lapsed, that about five months of inordinate and indolent delay followed, and that the application offended Rule 8(1) and (2) of the ELRC (Procedure) Rules, 2016 and section 79G of the Civil Procedure Act. Radido Stephen, J, allowed the change of advocates without contest as a matter of procedure. On extension of time, the court observed that the judgment and proceedings had not been released despite a performance standard requiring release within five days of delivery, and acknowledged resource constraints in typing proceedings. Noting the applicant's right of appeal and her annexed draft Memorandum of Appeal, and applying Njoroge v Kimani (2022) KECA 1188 (KLR) on delay occasioned by factors beyond a litigant's control, the court held the interests of justice favoured the applicant. It granted leave to file and serve a Memorandum of Appeal within 30 days, with costs of the application to abide the appeal. The application succeeded in full.

Questions the Court framed

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

  1. 1.Whether the firm of Ombui Ratemo & Associates Advocates should be allowed to come on record in place of the previous advocates
  2. 2.Whether the applicant should be granted leave to file appeal out of time against the judgment and decree in Kisii MC ELRC No E007 of 2022

Key legal issues

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01

Substitution of advocates on record

Holding

Granted without contest as a matter of procedure

Reasoning

The respondent did not object to the incoming firm coming on record in place of Messrs Samuel N. Mainga & Co. Advocates. In the absence of objection, the court allowed the change as a procedural matter rather than engaging any substantive analysis of the request.

p. 2
02

Leave to appeal out of time

Holding

Leave granted; delay excused

Reasoning

The court noted the applicant's right of appeal, that judgment and proceedings had not been released despite a performance standard requiring release within five days, and that typing of proceedings is hampered by human resource constraints. A draft memorandum of appeal was annexed. Finding the delay occasioned by factors beyond the applicant's control and following Njoroge v Kimani, the court held the interests of justice favoured exercising discretion in her favour.

p. 2

Legal principles established

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  • It is a performance standard that courts should release or publicise judgments to the parties and Kenya Law Reports within 5 days of delivery
  • Where delay in filing a memorandum of appeal is occasioned by factors beyond a litigant's control, the interests of justice favour granting leave to appeal out of time

Court orders

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  1. 1.The firm of Ombui Ratemo & Associates Advocates is allowed to come on record for the applicant
  2. 2.The applicant is granted leave to file and serve a Memorandum of Appeal within 30 days from the date of the order
  3. 3.Costs of the application to abide the Appeal

The bench

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

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court (Kisii)
Kisii MC ELRC No E007 of 2022
Jurisdiction invoked
Discretionary leave to appeal out of time under section 79G of the Civil Procedure Act and Rule 8(1) and (2) of the Employment and Labour Relations Court (Procedure) Rules, 2016

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.

It has now become a performance standard in this jurisdiction that a Court should release or publicise a judgment or decision to the parties and Kenya Law Reports within 5 days of delivery.
p. 2timely release of judgments
The applicant is granted leave to file and serve a Memorandum of Appeal within 30-days from today.
p. 2final orders - extension of time
Costs of the application to abide the Appeal.
p. 2costs

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, "Osoro v Nyangena Hospital Ltd (Miscellaneous Civil Application E049 of 2024) [2024] KEELRC 1609 (KLR)", Case Analysis (2024). ELRC Motion (filed 14 May 2024, Kisii MC ELRC No E007 of 2022 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1609/eng@2024-06-26

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