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ELRCAllowedCMCC No. 2017 of 2017 (intended appeal; application dated 18.09.2018, filed 19.09.2018)· [2018] KEELRC 304 (KLR)

English Press Limited v Ben Simiyu Buyobo [2018] KEELRC 304 (KLR)

Employment and Labour Relations Court
7 December 2018
815 words in judgment
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The bottom line

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A Kenyan court allowed a company to file its appeal four days late and froze the judgment debt, provided the full amount was safely deposited.

What this practically means

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Executive summary

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English Press Limited, the applicant, moved the Employment and Labour Relations Court by notice of motion dated 18.09.2018 and filed 19.09.2018 under Order 22 rule 22, Order 42 rule 4, Order 50 rule 6 and Order 51 rule 1 of the Civil Procedure Rules and Sections 3A and 79G of the Civil Procedure Act. It sought extension of time to lodge a memorandum of appeal out of time against a judgment delivered by Hon. Peter Muholi, Senior Resident Magistrate, on 15th August 2018 in CMCC No. 2017 of 2017 (Ben Simiyu Buyobo v English Press Limited), together with stay of execution of the resulting decree pending hearing of the application and of the intended appeal, with the appeal principally challenging quantum. The respondent, through Waiganjo Wachira & Company Advocates, filed grounds of opposition characterising the application as an abuse of process, an afterthought, and an attempt to deny him the fruits of his judgment. The court found the application prompt, made only four days after the time for appeal lapsed, and that the delay arose from miscommunication between the applicant's insurers and its advocates, a fact the respondent did not materially dispute. Holding the delay excusable and the appeal arguable, particularly on the fairness of the quantum of damages, the court extended time. On stay, the applicant was amenable to security conditions and the respondent filed no affidavit contradicting the assertion that the decretal sum might not be recovered if paid out. Stay of execution was granted conditional on the applicant depositing the full decretal sum in an interest-earning account in the joint names of the parties' advocates, with costs of the application to abide the outcome of the intended appeal.

Key legal issues

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01

Extension of time to lodge an appeal out of time

Holding

The 4-day delay was explained by miscommunication between the applicant's insurers and its advocates, which the respondent did not materially dispute; the delay was excusable and extension was granted.

Reasoning

The application was made promptly, only four days after lapse of time. The reason given was miscommunication between the applicant's advocates and its insurers. The respondent opposed on grounds of abuse of process and afterthought but did not controvert the facts of the delay. The court found the delay explained and excusable, and the appeal arguable, notably on quantum.

p. 2
02

Stay of execution pending the intended appeal

Holding

Stay was granted conditional upon the applicant depositing the full decretal sum in an interest-earning account in the joint names of the parties' advocates.

Reasoning

The applicant was amenable to security conditions for prompt satisfaction of the decree should the appeal fail. The respondent did not file an affidavit opposing the applicant's claim that the decretal sum might not be recovered if paid out and the appeal succeeded. The court therefore granted stay subject to the deposit condition, balancing security of the decree with preservation of the appeal.

p. 2

Legal principles established

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  • A short delay in lodging an appeal, if satisfactorily explained, is excusable and warrants extension of time.
  • Stay of execution may be granted on condition that the decretal sum be secured in an interest-earning joint account.

Court orders

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  1. 1.Stay of execution of the judgment and decree given by Hon. Peter Muholi, Senior Resident Magistrate on 15th August 2018 in CMCC No. 2017 of 2017, subject to the applicant depositing the full decretal sum in an interest earning account in the joint names of the parties' advocates by 21.12.2018, pending hearing and determination of the intended appeal
  2. 2.Extension of time and leave for the applicant to lodge a memorandum of appeal by 21.12.2018 against the judgment of 15th August 2018
  3. 3.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 22 rule 22
  • Civil Procedure RulesOrder 42 rule 4
  • Civil Procedure RulesOrder 50 rule 6
  • Civil Procedure RulesOrder 51 rule 1
On appeal from
Magistrates' Court
CMCC No. 2017 of 2017
Jurisdiction invoked
Section 3A and 79G of the Civil Procedure Act; Orders 22 rule 22, 42 rule 4, 50 rule 6 and 51 rule 1 of the Civil Procedure Rules

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, "English Press Limited v Ben Simiyu Buyobo [2018] KEELRC 304 (KLR)", Case Analysis (2018). CMCC No. 2017 of 2017 (intended appeal; application dated 18.09.2018, filed 19.09.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/304/eng@2018-12-07

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