[2020] KEELRC 966 (KLR)
The court found that the respondents' application was filed under the wrong provisions of law, specifically the Court of Appeal Rules, which are not applicable in the Employment and Labour Relations Court. The proper procedure for seeking extension of time in this court is under Order 50 Rule 6 of the Civil...
Source-derived case information.
- Citation
- [2020] KEELRC 966 (KLR)
- Parties
- Applicant: Martin O. Oluoch; Applicant: Richard W. Muriithi; Applicant: Daniel I. Methu; Applicant: Henry N. Gichuru; Respondent: Kenyatta National Hospital Board; Respondent: Dr. Meshack Onguti
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1854 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Application for Extension of Time to Appeal
- Outcome
- application struck out; execution to proceed
- Judges
- HS Wasilwa
- Legal Topics
- Extension of Time, Jurisdiction, Preliminary Objection, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin O. Oluoch
Applicant
Richard W. Muriithi
Applicant
Daniel I. Methu
Applicant
Henry N. Gichuru
Applicant
Kenyatta National Hospital Board
Respondent
Dr. Meshack Onguti
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the application for extension of time to file an appeal is properly before the court.
- 2 Whether the court has jurisdiction to grant the orders sought under the cited provisions.
- 3 Whether the application should be struck out for being incompetent and filed under the wrong provisions of law.
Ratio Decidendi
The court found that the respondents' application was filed under the wrong provisions of law, specifically the Court of Appeal Rules, which are not applicable in the Employment and Labour Relations Court. The proper procedure for seeking extension of time in this court is under Order 50 Rule 6 of the Civil Procedure Rules. Furthermore, the respondents had already filed a notice of appeal in 2016 and had not taken any steps to prosecute it for over three years, rendering the application for extension of time to file another appeal both incompetent and sub judice. The court held that it lacked jurisdiction to grant the orders sought and that the application was an abuse of the court...
Court Disposition
application struck out; execution to proceed
Orders
- The application filed by the respondents is struck out.
- Execution of the judgment and decree to proceed.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1854 OF 2014
(Formerly HCCC No. 546 of 2002)
(Before Hon. Lady Justice Hellen S. Wasilwa on 21st May, 2020)
MARTIN O. OLUOCH..................................................................1ST CLAIMANT
RICHARD W. MURIITHI ..........................................................2ND CLAIMANT
DANIEL I. METHU ....................................................................3RD CLAIMANT
HENRY N. GICHURU................................................................4TH CLAIMANT
VERSUS
KENYATTA NATIONAL HOSPITAL BOARD .................1STRESPONDENT
DR. MESHACK ONGUTI ...................................................2ND RESPONDENT
RULING
1. The Application before me was filed by the Respondents herein vide a Notice of Motion application. The Respondents herein are seeking extension of time to file an appeal out of time.
2. The Claimants have on the other hand raised a Preliminary Objection against the said application on the following grounds:-
1. The Application is incurably defective, incompetent and hopelessly out of time and filed after undue and unreasonable delay and brought under inapplicable and wrong provisions of the law and should be struck our In-Limine and Ex-Debito-Justitiae.
2. The jurisdiction of this Honourable Court has been invoked through the wrong provisions of the law since the cited provisions of Sections 3A and 7 of Cap 9 together with Rules 4 and 53(1) of the Court of Appeal Rules are not applicable in the High Court but only applicable to the Court of Appeal.
3. The Jurisdiction to Stay Execution of Judgement, decrees and orders can only be invoked under Orders 42 Rule 6 upon specifically laid down conditions as provided by the law.
4. The Jurisdiction to extend time in the High Court is only exercised under Order 50 Rule 6 of the Civil Procedure Rules and not under the cited provisions in the Notice of Motion dated 29/01/2020.
5. The Honourable Court therefore has no jurisdiction to grant the orders as sought in the Notice of Motion dated 29/01/2020 and the Application should be struck out and/or dismissed with costs.
6. The Judgement and Decree sought to be appealed against was substantially executed, satisfied and effected save for a small limb thereof and the same cannot be stayed after having been substantially satisfied.
7. The Respondents filed a Notice of Appeal dated 05/12/2016 against the Judgement and Decree dated 14/11/2016 and never pursued the Appeal process and the Notice of Appeal is still on record and the Respondent took no action thereon for over three (3) years.
8. The Application is grossly incompetent, frivolous, vexatious, scandalous and amounts to a gross abuse of the Court process and the same should be dismissed with costs.
3. The Claimants argues that the application is filed under wrong provisions of law being Court of Appeal Rules and not under Order 50 Rules (6) of the Civil Procedure Rules and therefore lacks jurisdiction to hear the application.
4. The Claimants also argue that the Respondents filed a Notice of Appeal on 5/12/2016 against the judgement and decree dated 14/11/1016. They aver that the appeal is still on record and that the Respondents have not taken any action to prosecute it three years down the line.
5. The Respondent admit filing an appeal in 2016 which they have not prosecuted. Granting them an order to file another appeal out of time would make the new appeal sub judice. I therefore decline to grant the said order as sought.
6. On stay, there being no appeal except one pending before the Court of Appeal and which the Respondents have not prosecuted, the Court that can comfortably grant the stay is the Court of Appeal after considering the merits or otherwise of the appeal before Court.
7. I therefore find that the Preliminary Objection as raised has merit. I proceed to strike out the application before me filed by the Respondents and order that execution proceeds.
8. Costs in the cause.
Dated and delivered in Chambers via zoom this 21st day of May, 2020.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
No appearance for Parties