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ELRCAllowedCause Number 74 of 2018

Melly v Mogogosiek Tea Factory Company Ltd (Employment and Labour Relations Cause 74 of 2018) [2024] KEELRC 1858 (KLR)

Employment and Labour Relations Court
18 July 2024
HWHellen Wasilwa
2,291 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed a client should not lose an appeal because of their lawyer's delay, ordering a fresh certificate of delay.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Kericho determined the Claimant's Notice of Motion dated 25th April 2024 seeking a fresh certificate of delay for the proceedings in Cause Number 74 of 2018, whose claim had been dismissed on 1st February 2019. The applicant, through his former advocate now ceased, explained that after filing a notice of appeal on 13th February 2019, he repeatedly sought typed proceedings, only learning on 30th January 2020 that the court file had earlier gone missing. A certificate of delay dated 14th October 2022 showing 368 days of court delay was never served on or notified to the applicant, who discovered it in the court file on 7th March 2024. The respondent opposed, arguing unexplained inordinate delay by the applicant and counsel, that the law does not contemplate re-issuance of a certificate of delay, and that the fresh certificate would not cure the appeal's lateness, relying on authority that certificates of delay cannot be used to sanitise delay. The court identified one issue: whether a fresh certificate of delay should issue. It noted counsel's inaction between 2022 and 2024 but held that counsel's mistake should not be visited on the claimant, found no prejudice to the respondent, and in the interest of justice allowed the application, ordering issuance of a certificate of delay that day with costs in the cause.

Questions the Court framed

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

  1. 1.whether the applicant has made out a case for issuance of a fresh certificate of delay
  2. 2.whether the Respondent will suffer any prejudice if the orders sought are granted
  3. 3.who should bear the costs of this Application

Key legal issues

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Whether a fresh certificate of delay should be issued where the original certificate was issued without notice to the applicant and there was delay by counsel

Holding

The court allowed the application and ordered issuance of a fresh certificate of delay, attributing the inaction to counsel and finding no prejudice to the respondent.

Reasoning

The court observed that the suit was concluded in 2019, a certificate of delay had been issued in October 2022 but counsel took no action until 2024 when new advocates came on record. It attributed the inaction to counsel, held that a counsel's mistake should not be visited on the claimant, found no prejudice to the respondent, and exercised its discretion in favour of the applicant in the interest of justice.

p. 5

Legal principles established

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  • A counsel's mistake should not be visited upon the claimant/litigant.

Court orders

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  1. 1.A fresh certificate of delay be issued for the proceedings in Kericho ELRC Cause Number 74 of 2018
  2. 2.Costs in the cause

The bench

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

HW
majority

Wrote the judgment

Jurisdiction invoked
Article 159 of the Constitution, Sections 3, 3A, 3B and 79G of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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.

The mistake I can attribute to counsel which should not be vented upon the Claimant.
p. 5counsel's mistake not visited on litigant
There is not prejudice indicated which the Respondent will sufier if the application sought is granted. I exercise my discretion and allow the application for ends of justice to be met and order a certificate of delay be issued today. Costs in the cause.
p. 5final orders - issuance of fresh certificate of delay

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, "Melly v Mogogosiek Tea Factory Company Ltd (Employment and Labour Relations Cause 74 of 2018) [2024] KEELRC 1858 (KLR)", Case Analysis (2024). Cause Number 74 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1858/eng@2024-07-18

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