1. By an application dated 17th January, 2024 brought under section 79G of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, the applicant sought orders of this Court that the honourable Court be pleases to grant the applicant leave to file an appeal out of time against the decision of Chief Magistrate Court (Hon. E.M Kagoni) delivered on the 10th May, 2021 in Nairobi Civil Suit No. 4277 of 2017.
2. The application was brought on the ground among others that the intended appeal arises from a WIBA matter that was struck out by the Chief Magistrates Court for lack of jurisdiction and that the applicant filed an appeal on 8th June, 2021 in the High Court in the belief that the Court had jurisdiction to determine the appeal.
3. That the High Court struck out the appeal on 21st September, 2023 citing lack of jurisdiction
4. That at the time of filing the appeal to the High Court, there was no clear consensus on the right forum for filing of WIBA matters especially WIBA appeals.
5. The application was further stated to be supported by the affidavit of the applicant, one James Musyoki who deponed to issues similar to the grounds upon which the application was brought.
6. The respondent through its advocate Wamae Ndegwa opposed the application and filed a Replying Affidavit sworn on 10th April, 2024. He deponed among others that:
a) THAT contrary to the averments in paragraph 5 of the Supporting Affidavit, the Respondent never applied to strike out the Appeal. The Hon. J. K. Sergon J on 4lh October 2022 admitted the Appeal and directed both the Applicant and Respondent to dispose of the Appeal by way of written submissions. A copy of the directions is annexed and marked ‘WN-2’.
b) THAT the Applicant, through his advocates, on 16th January 2023 promptly filed his submissions dated 13th January 2023 with the Respondent filing its submissions dated 17th February 2023 on 28th February 2023. Copies of both parties’ submissions are annexed and marked ‘WN-3(a)’ and ‘WN-3(b)’ respectively.
c) THAT it is clear from paragraphs 4, 5, and 6 above and contrary to the picture the Applicant is trying to paint in paragraphs 5 & 7 of the Supporting Affidavit, he actively participated in not only filing but prosecuting the filed appeal and having it heard on merit by the High Court at Milimani.
d) THAT further, the Hon. A. Visram J in his judgment delivered on 21st September 2023 considered all the facts as submitted by the Applicant and Respondent and in his well-reasoned decision, proceeded to dismiss the Applicant’s said appeal on a merit-based assessment of the law and evidence before him.
e) THAT it is not in dispute that the Applicant has been represented and has had the benefit of counsel since the inception of this claim at the Chief Magistrates Court through to the moment the Appeal was heard and determined by the High Court.
f) THAT it is trite that a case belongs to a litigant. An advocate being the agent of the party who instructs him, has an obligation to execute his client's instructions. He therefore not only gave instructions to file an appeal challenging the decision of the Hon. Magistrate but also considered his options as to what court to approach on Appeal. His choice to approach the High Court was voluntary and upon advise from his advocates.
g) THAT if indeed the averments in paragraph 6 (b) of the Supporting Affidavit are true, he also had the option to consider whether to have the Appeal transferred to the Employment and Labour Relations Court from the time the Appeal was filed on 8th June 2021 to the time the Appeal was dismissed on merit on 21st September 2023.
h) THAT clearly the Applicant is dissatisfied with the decision of the High Court in dismissing his appeal. But instead of approaching the Court of Appeal as provided in the Law, he (as confirmed in paragraph 11 of the Replying Affidavit) opted to try his luck and file a fresh (second) appeal.
i) THAT he had his day in court and more so when he approached the High Court to have the decision of the Subordinate Court reversed. The Court disagreed with him and dismissed his appeal.
7. The applicant filed a further affidavit through Counsel Mr. Kuloba who deponed among others that:
a. THAT in reply to paragraph 3 of the Respondent’s replying affidavit, the suit at the Chief Magistrates Court was never heard, but was struck out for lack of jurisdiction following an application by the respondent. The main case was never heard.
b. THAT in reply to paragraph 4 of the Respondent’s replying affidavit, the applicant filed the appeal at the High Court believing that it had jurisdiction. Indeed, at the time, there was still a conundrum on the issue of WIBA matters jurisdiction, and the same matters had been stood over generally in the Magistrates courts.
c. THAT in reply to paragraphs 8, 9, 10, 11, 12, 13 and 14 of the Respondent’s replying affidavit, the high court in its judgement dated 21st September, 2023 only dealt with the issue of whether it had jurisdiction. The court did not at all deal with the issue of whether the Magistrates Court had jurisdiction to hear the case, which was the substance of the appeal.
d. THAT the practice directions stated in paragraph 20 of the judgement were issued on 28th April, 2023 way after the applicant’s appeal at the High Court had been filed and parties had even filed submissions on the appeal, hence it cannot be said that the applicant was aware of the directions on jurisdiction of WIBA Appeals
8. From the record, only the respondent appears to have filed submissions which the Court has considered.
DETERMINATION
9. The application before the Court concerns the single issue of whether the Court should grant the Applicant extension of time to file an appeal. To grant or not such order is at the discretion of the Court. The discretion will be exercised in favour of the applicant or not, depending on the reasons given for the delay. The Court will further consider if there would be any prejudice occasioned to the respondent if the discretion is exercised in favour of the applicant.
10. The applicant from the facts set out above states that the delay was occasioned by the confusion over which was the proper court to file Appeals from WIBA decisions. The apparent confusion has been appreciated by both parties but the same was clarified by the Practice Directions issued by the Chief Justice through Gazette No. 99 of 28th April, 2023. These directions according to the applicant were issued way after parties in the appeal before the High Court had filed their submissions on the appeal. This was not denied by the respondent.
11. For the Chief Justice to step in and issue practice directions on the matter, it cannot be denied there was some lack of clarity. To this extent the applicant has reasonably explained the delay in filing the appeal and the Court is inclined to exercise it discretion in favour of the applicant.
12. In conclusion the application dated 17th January, 2024 is hereby allowed on condition that the applicant shall file and serve the appeal within 30 days of this order. The matter will be mentioned on 28th of July, 2025 to confirm compliance.
13. Costs shall abide the outcome of the appeal.
14. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division
2. The application was brought on the ground among others that the intended appeal arises from a WIBA matter that was struck out by the Chief Magistrates Court for lack of jurisdiction and that the applicant filed an appeal on 8th June, 2021 in the High Court in the belief that the Court had jurisdiction to determine the appeal.
3. That the High Court struck out the appeal on 21st September, 2023 citing lack of jurisdiction
4. That at the time of filing the appeal to the High Court, there was no clear consensus on the right forum for filing of WIBA matters especially WIBA appeals.
5. The application was further stated to be supported by the affidavit of the applicant, one James Musyoki who deponed to issues similar to the grounds upon which the application was brought.
6. The respondent through its advocate Wamae Ndegwa opposed the application and filed a Replying Affidavit sworn on 10th April, 2024. He deponed among others that:
a) THAT contrary to the averments in paragraph 5 of the Supporting Affidavit, the Respondent never applied to strike out the Appeal. The Hon. J. K. Sergon J on 4lh October 2022 admitted the Appeal and directed both the Applicant and Respondent to dispose of the Appeal by way of written submissions. A copy of the directions is annexed and marked ‘WN-2’.
b) THAT the Applicant, through his advocates, on 16th January 2023 promptly filed his submissions dated 13th January 2023 with the Respondent filing its submissions dated 17th February 2023 on 28th February 2023. Copies of both parties’ submissions are annexed and marked ‘WN-3(a)’ and ‘WN-3(b)’ respectively.
c) THAT it is clear from paragraphs 4, 5, and 6 above and contrary to the picture the Applicant is trying to paint in paragraphs 5 & 7 of the Supporting Affidavit, he actively participated in not only filing but prosecuting the filed appeal and having it heard on merit by the High Court at Milimani.
d) THAT further, the Hon. A. Visram J in his judgment delivered on 21st September 2023 considered all the facts as submitted by the Applicant and Respondent and in his well-reasoned decision, proceeded to dismiss the Applicant’s said appeal on a merit-based assessment of the law and evidence before him.
e) THAT it is not in dispute that the Applicant has been represented and has had the benefit of counsel since the inception of this claim at the Chief Magistrates Court through to the moment the Appeal was heard and determined by the High Court.
f) THAT it is trite that a case belongs to a litigant. An advocate being the agent of the party who instructs him, has an obligation to execute his client's instructions. He therefore not only gave instructions to file an appeal challenging the decision of the Hon. Magistrate but also considered his options as to what court to approach on Appeal. His choice to approach the High Court was voluntary and upon advise from his advocates.
g) THAT if indeed the averments in paragraph 6 (b) of the Supporting Affidavit are true, he also had the option to consider whether to have the Appeal transferred to the Employment and Labour Relations Court from the time the Appeal was filed on 8th June 2021 to the time the Appeal was dismissed on merit on 21st September 2023.
h) THAT clearly the Applicant is dissatisfied with the decision of the High Court in dismissing his appeal. But instead of approaching the Court of Appeal as provided in the Law, he (as confirmed in paragraph 11 of the Replying Affidavit) opted to try his luck and file a fresh (second) appeal.
i) THAT he had his day in court and more so when he approached the High Court to have the decision of the Subordinate Court reversed. The Court disagreed with him and dismissed his appeal.
7. The applicant filed a further affidavit through Counsel Mr. Kuloba who deponed among others that:
a. THAT in reply to paragraph 3 of the Respondent’s replying affidavit, the suit at the Chief Magistrates Court was never heard, but was struck out for lack of jurisdiction following an application by the respondent. The main case was never heard.
b. THAT in reply to paragraph 4 of the Respondent’s replying affidavit, the applicant filed the appeal at the High Court believing that it had jurisdiction. Indeed, at the time, there was still a conundrum on the issue of WIBA matters jurisdiction, and the same matters had been stood over generally in the Magistrates courts.
c. THAT in reply to paragraphs 8, 9, 10, 11, 12, 13 and 14 of the Respondent’s replying affidavit, the high court in its judgement dated 21st September, 2023 only dealt with the issue of whether it had jurisdiction. The court did not at all deal with the issue of whether the Magistrates Court had jurisdiction to hear the case, which was the substance of the appeal.
d. THAT the practice directions stated in paragraph 20 of the judgement were issued on 28th April, 2023 way after the applicant’s appeal at the High Court had been filed and parties had even filed submissions on the appeal, hence it cannot be said that the applicant was aware of the directions on jurisdiction of WIBA Appeals
8. From the record, only the respondent appears to have filed submissions which the Court has considered.
DETERMINATION
9. The application before the Court concerns the single issue of whether the Court should grant the Applicant extension of time to file an appeal. To grant or not such order is at the discretion of the Court. The discretion will be exercised in favour of the applicant or not, depending on the reasons given for the delay. The Court will further consider if there would be any prejudice occasioned to the respondent if the discretion is exercised in favour of the applicant.
10. The applicant from the facts set out above states that the delay was occasioned by the confusion over which was the proper court to file Appeals from WIBA decisions. The apparent confusion has been appreciated by both parties but the same was clarified by the Practice Directions issued by the Chief Justice through Gazette No. 99 of 28th April, 2023. These directions according to the applicant were issued way after parties in the appeal before the High Court had filed their submissions on the appeal. This was not denied by the respondent.
11. For the Chief Justice to step in and issue practice directions on the matter, it cannot be denied there was some lack of clarity. To this extent the applicant has reasonably explained the delay in filing the appeal and the Court is inclined to exercise it discretion in favour of the applicant.
12. In conclusion the application dated 17th January, 2024 is hereby allowed on condition that the applicant shall file and serve the appeal within 30 days of this order. The matter will be mentioned on 28th of July, 2025 to confirm compliance.
13. Costs shall abide the outcome of the appeal.
14. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division