[2023] KEELRC 2366 (KLR)
The Employment and Labour Relations Court lacks jurisdiction to extend time for filing a record of appeal to the Court of Appeal; such power is exclusively vested in the Court of Appeal under rule 4 of the Court of Appeal Rules, 2010. Even if jurisdiction existed, the applicant failed to provide material...
Source-derived case information.
- Citation
- [2023] KEELRC 2366 (KLR)
- Parties
- Applicant: Rosina Mkakisha Maganga; Respondent: National Police Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 11 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Change of Advocate
- Outcome
- application dismissed with costs
- Judges
- S Radido
- Legal Topics
- Extension of Time, Leave to Appeal, Change of Advocate, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosina Mkakisha Maganga
Applicant
National Police Service Commission
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Change of Advocate
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to extend time for filing a record of appeal to the Court of Appeal.
- 2 Whether leave should be granted to Kithi & Co. Advocates to come on record for the applicant.
- 3 Whether the applicant provided sufficient material to justify extension of time.
Ratio Decidendi
The Employment and Labour Relations Court lacks jurisdiction to extend time for filing a record of appeal to the Court of Appeal; such power is exclusively vested in the Court of Appeal under rule 4 of the Court of Appeal Rules, 2010. Even if jurisdiction existed, the applicant failed to provide material particulars, specifically the date she discovered her advocate's omission, which was necessary to justify the exercise of discretion. Leave was granted for the new advocates to come on record, but the substantive application for extension of time was dismissed for want of jurisdiction and lack of material disclosure.
Court Disposition
application dismissed with costs
Orders
- Leave is granted to Kithi & Co. Advocates to come on record for the applicant.
- The motion dated 5 June 2023 is dismissed with costs.
Full Case Text
Judgment text and source record
66 paragraphs
Nadite & 19 others v National Police Service Commission (Petition 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 & 36 of 2018 (Consolidated)) [2023] KEELRC 2366 (KLR) (4 October 2023) (Ruling)
Neutral citation: [2023] KEELRC 2366 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Petition 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 & 36 of 2018 (Consolidated)
S Radido, J
October 4, 2023
Between
Celina Nadite
1st Petitioner
Josephine Nyakara Regicha
2nd Petitioner
Veronica Leiro Simintoi
3rd Petitioner
Beatrice Wambura Muriuki
4th Petitioner
Francis Agesa Yoya
5th Petitioner
Simon Naibei
6th Petitioner
Philomena Mwongeli Nicholas
7th Petitioner
Dorothy Adhiambo Okach
8th Petitioner
Peter Mungai Kamau
9th Petitioner
Geoffrey Manyali Kikech
10th Petitioner
Joyce Arus Owiti
11th Petitioner
Kennedy Rucho Obusuru
12th Petitioner
Japheth Safari Baya
13th Petitioner
Samson Kipkulei Ayebei
14th Petitioner
Nelson David Njoroge
15th Petitioner
Rosina Mkakisha Maganga
16th Petitioner
Sora Duba Huka
17th Petitioner
Roseline Luvega Mwanje
18th Petitioner
Rotich Sylvester Kiprono
19th Petitioner
Charles Kirui Kiprono
20th Petitioner
and
National Police Service Commission
Respondent
Ruling
1. For consideration is a Motion dated 5 June 2023 by the 16th petitioner, Rosina Mkakisha Maganga seeking orders:(1)…(2)That leave be granted to the firm of Kithi & Co Advocates to come on record for the applicant.(3)That the Honourable Court be pleased to extend and/or enlarge time for filing the Memorandum of Appeal and Record of Appeal out of time against the judgment of the Honourable Court delivered on March 7, 2019 in ELRC Petition No. 26 of 2018. (4)That the annexed Memorandum of Appeal be deemed to be duly filed and properly on record.(5)That the Honourable Court be deemed to grant any further directions that may be necessary for the expeditious determination of the appeal.(6)That costs of this application be in the cause.
2. The grounds in support of the application were that a notice of appeal was filed on 19 March 2019, but the erstwhile advocate failed to file a record of appeal within the prescribed time despite instructions to file; that the then advocate did not update the applicant on the status of the appeal and that she only learnt that the Record of Appeal had not been filed upon visiting the registry.
3. When the application was placed before the court on 7 June 2023, it directed that the application be served and replies and submissions be filed and exchanged ahead of further directions on 26 June 2023.
4. The applicant filed her submissions on 15 June 2023.
5. On 26 June 2023, the Respondent requested for more time to file and serve responses and submissions, and the Court gave it up to 30 July 2023.
6. The Respondent filed a replying affidavit on 28 July 2023 but its submissions were not available on the e-filing platform.
7. The Court has considered the application, affidavits and submissions.
8. Without grant of leave to the firm of Kithi & Co. Advocates to come on record, the application under consideration would be a non-starter.
9. In order to do justice on the merits, the Court grants leave to the firm of Kithi & Co. Advocates to come on record for the applicant.
10. On the merits of the application, the court notes that a notice of appeal was lodged with the Court on 19 March 2019, and that under rule 4 of the Court of Appeal Rules, 2010, the power to extend time was (is) reposed in the Court of Appeal.
11. The applicant did not direct the mind of this court to any express statutory provision clothing it with the jurisdiction to enlarge time for purposes of filing a record of appeal in the Court of Appeal.
12. In any case, even if this Court had jurisdiction it would not have exercised it in favour of the applicant because she did not disclose the date when she found out that her advocate had not filed the Record of Appeal. Such disclosure was necessary and material.
13. The motion dated 5 June 2023 is dismissed with costs.
DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 4TH DAY OF OCTOBER 2023. RADIDO STEPHEN, MCIArbJUDGEAppearancesFor applicant Kithi & Co. AdvocatesFor Respondent National Police Service CommissionCourt Assistant Chrispo Aura