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ELRCDismissedCause No 1253 of 2015· [2016] KEELRC 1390 (KLR)

Standard Limited v Moses Anemba [2016] KEELRC 1390 (KLR)

Employment and Labour Relations Court
15 April 2016
MNMathews N. Nduma
933 words in judgment
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The bottom line

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The Employment and Labour Relations Court refused to extend time for an appeal filed months late with no explanation and after the winner had already been paid in full.

What this practically means

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Executive summary

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The applicant sought leave to admit its appeal out of time against a judgment of the Resident Magistrate's Court in a matter transferred to the Employment and Labour Relations Court and registered as Cause No 1253 of 2015. The appeal had been filed on 8th April 2015 without leave, out of the 30-day period prescribed by Section 79G of the Civil Procedure Act, and the application for leave was lodged on 6th July 2015. The claimant/respondent opposed the application by replying affidavit. The court framed three issues: whether there was inordinate delay, whether satisfaction of the decree rendered the appeal spent, and whether an arguable appeal was disclosed. Applying the principles in the Salat case on extension of time, and the requirement in the Limelane line of authority that an intending appellant file the appeal and simultaneously seek leave for its admission out of time, the court found the delay of about seven months from judgment and over three months from filing the appeal inordinate and unexplained. It further noted the claimant/respondent had been paid the decretal sum in full on 5th March 2015, before the appeal was filed, and would suffer prejudice if the extension were granted. The third issue did not fall for determination. The application was dismissed with costs to the claimant/respondent.

Key legal issues

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01

Whether there was inordinate delay in filing the application for extension of time

Holding

Yes - about seven months from judgment and over three months from filing the appeal without leave, with no reasonable explanation

Reasoning

The appeal was filed on 8th April 2015 without leave, yet judgment had been delivered on 23rd January 2015 and the statutory 30-day period under Section 79G expired on 23rd February 2015. The application for leave was filed on 6th July 2015. The applicant offered no explanation satisfying the court, and the delay was therefore inordinate.

p. 2
02

Whether satisfaction of the decree renders the appeal spent / causes prejudice

Holding

The decretal sum was fully paid on 5th March 2015 before the appeal was filed, so the respondent would suffer prejudice if extension were granted

Reasoning

The court considered that the claimant/respondent had been paid the decretal sum in full before the appeal was filed. Granting extension at that stage would prejudice a party who had already satisfied the decree, weighing against the equitable discretion to extend time.

p. 2

Legal principles established

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  • Extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court
  • An intending appellant must file the appeal and simultaneously seek leave to have it admitted out of time; permission cannot be sought for a non-existent appeal

Court orders

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  1. 1.The application seeking leave to admit the appeal out of time is dismissed
  2. 2.Costs to the claimant/respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesSection 79G (as referred to)

Cases cited (3)

  • Nicholas Kiptoo Arap Korir Salat –Vs- IEBC & 7 Others
    Supreme Court Application No 16 of 2014
  • Masoud M.Y Noorani -Vs- General Tyres Sales Ltd
    (2004) eKLR
  • Gerald M. Limelane –Vs- Joseph Kangangi
    (2009) eKLR
On appeal from
Resident Magistrate's Court
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to admit appeal out of time)

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, "Standard Limited v Moses Anemba [2016] KEELRC 1390 (KLR)", Case Analysis (2016). Cause No 1253 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1390/eng@2016-04-15

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