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ELRCAllowedApplication dated 26th June 2023 (referencing judgment in Milimani CMEL Cause No. 157 of 2019)

Mainga v Steel Structures Limited (Miscellaneous Cause E139 of 2023) [2024] KEELRC 1803 (KLR)

Employment and Labour Relations Court
5 July 2024
1,437 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court let a worker appeal late and stopped enforcement of the judgment against him, accepting his explanation for the delay.

What this practically means

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Executive summary

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The Applicant, the intended appellant, brought an application dated 26th June 2023 under Sections 3A and 79 of the Civil Procedure Act, Orders 42 and 50 Rule 1 of the Civil Procedure Rules, seeking leave to file an appeal out of time against the judgment in Milimani CMEL Cause No. 157 of 2019, together with a stay of execution. He explained that the judgment, dated 8/4/2022 and signed by Hon. D.M. Kivuti, was delivered over a year later on 26th April 2023 by a different magistrate, Hon. Opande, and that a typed copy was only availed on 20th June 2023 after repeated follow-ups at the registries, which he contended was necessary for preparing the memorandum of appeal. The Respondent opposed the application as an abuse of process, an afterthought aimed at delaying execution, arguing the application was filed 81 days after delivery of judgment on 8th April 2023 with no proceedings applied for or memorandum of appeal filed, and that the applicant had not shown detailed substantial loss. The court, in a ruling by Abudha Nelson Jorum, Judge, applied Rule 8 of the ELRC (Procedure) Rules 2016, Sections 79G and 95 of the Civil Procedure Act, and the four-pronged test in Leo Sila Mutiso v Rose Hellen Wangari Mwangi. It found the applicant's unrebuted explanation amounted to sufficient cause, that the attached memorandum of appeal raised arguable issues, and that the Respondent would suffer no prejudice. The court allowed the application, granted leave to file the appeal out of time, directed filing and service of the memorandum of appeal within the stated period, and stayed execution of the judgment/decree in CMEL Cause No. 157 of 2019 pending the appeal.

Questions the Court framed

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

  1. 1.Whether there is a good and reasonable explanation for the delay in filing the appeal
  2. 2.Whether the application has been brought without undue delay
  3. 3.Whether the proposed appeal is arguable
  4. 4.Whether any prejudice will be suffered by the Respondent

Key legal issues

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01

Whether the applicant gave good and sufficient cause for filing the appeal out of time

Holding

The court found that the applicant's unrebuted explanation - that the judgment dated 8/4/2022 was delivered over a year later on 26th April 2023 by a different magistrate and a typed copy was only availed on 20th June 2023 - amounted to sufficient cause for the delay.

Reasoning

The court applied the four-pronged test from Leo Sila Mutiso v Rose Hellen Wangari Mwangi. The applicant asserted that the judgment was dated 8/4/2022 but delivered on 26th April 2023 by Hon. Opande, and that repeated follow-ups at the registries yielded the typed judgment only on 20th June 2023, with email correspondence attached. These assertions were not rebutted by the Respondent, who instead contended the judgment was delivered on 8th April 2023. The court found the applicant had given sufficient cause and was entitled to pursue the appeal.

p. 4
02

Whether the proposed appeal was arguable and whether the Respondent would suffer prejudice

Holding

The court found the memorandum of appeal raised arguable issues and that the Respondent would suffer no prejudice.

Reasoning

The court examined the third and fourth prerequisites. The applicant had attached a memorandum of appeal to the application, which the court found raised arguable issues warranting the exercise of discretion in his favour. The court also found no prejudice would be suffered by the Respondent if the application was allowed, justifying both the extension of time and a stay of execution pending appeal.

p. 4

Legal principles established

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  • In deciding whether to grant an extension of time the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.Leave granted to the applicant to file the appeal out of time against the judgment delivered in Milimani CMEL Cause No. 157 of 2019
  2. 2.The applicant to file and serve his Memorandum of Appeal within the period stated in the order
  3. 3.Execution of the Judgment/decree in Milimani CMEL Cause No. 157 of 2019 stayed pending the hearing and determination of 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
Magistrates' Court (Milimani CMEL Cause No. 157 of 2019)
CMEL Cause No. 157 of 2019
Jurisdiction invoked
Sections 3A and 79G of the Civil Procedure Act, Section 95 of the Civil Procedure Act, Order 42 and Order 50 Rule 1 of the Civil Procedure Rules, and Rule 8 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.

In the present case, the court is of the view that the Applicant has attempted to explain the delay in filing an appeal, and has therefore given suficient cause for not filing the appeal in time.
p. 4sufficient cause for delay
Leave is granted to the applicant to file appeal out of time against the judgment delivered in Milimani CMEL Cause NO 157 OF 2019.
p. 4final orders - extension of time
Execution of the Judgment/decree in Milimani CMEL CAUSE NO 157 OF 2019 is hereby stayed pending the hearing and determination of the appeal.
p. 4final orders - stay of execution

Issues in the judgment

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material

The order purports to allow 'the application dated 10th September, 2021' although the application was dated 26th June 2023.

minor

The judgment date is stated inconsistently: 8/4/2022 in the Applicant's averment versus 8th of April 2023 in the Respondent's averment.

material

The order on the filing period is internally inconsistent: it says fourteen days but states (30).

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, "Mainga v Steel Structures Limited (Miscellaneous Cause E139 of 2023) [2024] KEELRC 1803 (KLR)", Case Analysis (2024). Application dated 26th June 2023 (referencing judgment in Milimani CMEL Cause No. 157 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1803/eng@2024-07-05

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