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ELRCPartially AllowedNairobi CM ELRC No. E1539 of 2023 (related application dated 15th September 2023)· [2024] KEELRC 1739 (KLR)

Teachers Service Commission v Macharia (Miscellaneous Application E190 of 2023) [2024] KEELRC 1739 (KLR)

Employment and Labour Relations Court
5 July 2024
2,140 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed an employer to appeal late against permission for a delayed claim, stressing courts will hear litigants who move within a reasonable time.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Abuodha Nelson Jorum, J) on an application dated 15th September 2023 by the Applicant seeking leave to appeal out of time against a ruling of Hon. G. Omodho (P.M) delivered on 12th July 2023 in Nairobi Misc Civil App No. E588 of 2023, in which the Respondent was granted leave to file an employment claim out of time, and seeking a stay of proceedings in Nairobi CM ELRC No. E1539 of 2023. The Applicant explained that counsel diarised a further mention for 14th July 2023 instead of 12th July 2023, with the result that the application was heard and determined undefended; counsel sought the ruling on 1st August 2023 and was served with the order and memorandum of claim on 30th August 2023, filing this application on 16th September 2023. The Respondent opposed, alleging inordinate indolence and prejudice under Article 50. Applying Section 79G of the Civil Procedure Act and the Thuita Mwangi factors, the court held the delay of roughly two weeks after service was not inordinate and was explained, the draft memorandum raised arguable grounds - particularly whether the claim was time-barred under section 90 of the Employment Act - and the Respondent would not suffer overriding prejudice. On stay, applying Order 42 Rule 6 and Joseph Odide Walome, Halal v Thornton & Turpin and James Wangalwa, the court found the conditions met and security inapplicable as the orders were not monetary. The application was allowed, the Applicant granted leave to appeal out of time, the proceedings in CMELRC No. 1539 of 2023 stayed, with costs in the cause.

Key legal issues

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01

Extension of time to file appeal

Holding

The delay of about two weeks after service of the order was not inordinate, was explained, the appeal was arguable on the section 90 Employment Act limitation point, and the Respondent would not suffer such prejudice as to defeat justice; leave to appeal out of time was granted.

Reasoning

Applying Section 79G of the Civil Procedure Act and the Thuita Mwangi factors, the court found the delay was barely two months and only about two weeks from service of the order, which counsel explained (diarising error). The draft memorandum raised arguable grounds, notably whether the claim was time-barred under section 90 of the Employment Act. The Respondent's need to prosecute his claim was outweighed by the Applicant's point of law requiring determination.

p. 3
02

Stay of proceedings pending appeal

Holding

The conditions in Order 42 Rule 6 were satisfied: no unreasonable delay, substantial risk of rendering the appeal nugatory, and security was inapplicable since the orders were not monetary; stay of the proceedings was granted.

Reasoning

Relying on Order 42 Rule 6 and the authorities on substantial loss, the court reasoned that allowing the Respondent to prosecute his claim while the appeal on limitation was pending would prejudicially render the appeal nugatory if the Applicant succeeded. Since the lower court orders were not for damages or amounts, security was not applicable. The application met the conditions for stay.

p. 5

Legal principles established

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  • An appeal under Section 79G of the Civil Procedure Act may be admitted out of time if the appellant shows good and sufficient cause for the delay.
  • This court will not shut out a litigant who approaches it within a reasonable time.

Court orders

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  1. 1.The Applicant is allowed to file the Appeal out of time
  2. 2.Stay of proceedings in CMELRC No. 1539 of 2023 until the issues raised in the Applicant's appeal are ventilated
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 25, 150, 159, 165(6) & (7), 50
  • Civil Procedure ActSections 1B, 3A, 75, 79G
  • Civil Procedure RulesOrder 42 Rule 6(1), 6(2) and 8
  • Employment ActSection 90
  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court (Procedure) Rules 2016Section 59

Cases cited (6)

  • Charles N. Ngugi v ASL Credit Limited
    [2022] eKLR
  • Thuita Mwangi v Kenya Airways Ltd
    [2003] eKLR
  • Joseph Odide Walome v David Mbadi Akello
    [2022] eKLR
  • Halal & Another v Thornton & Turpin Ltd
    [1990] eKLR
  • Rasiklal Somabhai Patel v Parklands Properties Ltd
  • James Wangalwa & Anor v Agnes Naliaka Cheseto
    [2012] eKLR
Jurisdiction invoked
Articles 25, 150, 159 and 165(6) & (7) of the Constitution; Sections 1B, 3A, 75 and 79G of the Civil Procedure Act; Order 42 Rule 6(1) and 8 of the Civil Procedure Rules; Section 90 of the Employment Act; Section 12 of the Employment and Labour Relations Court 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, "Teachers Service Commission v Macharia (Miscellaneous Application E190 of 2023) [2024] KEELRC 1739 (KLR)", Case Analysis (2024). Nairobi CM ELRC No. E1539 of 2023 (related application dated 15th September 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1739/eng@2024-07-05

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