John Kahiato Bari & 3 others v New Kenya Cooperative Creamaries Limited & another [2018] KEELRC 1219 (KLR)

Employment and Labour Relations Court of Kenya

12 July 2018

HWHellen Wasilwa

2,463 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~10 min to read original · ~4 min brief

The bottom line

Kenya's Employment Court gave NIC Bank 15 extra days to appeal and paused the employees' case until that appeal is decided.

What this practically means

Executive summary

The Applicant (NIC Bank Limited) moved the Employment and Labour Relations Court by an application dated 5th February 2018 seeking leave to appeal against a ruling of Hon. Justice Wasilwa delivered on 21st November 2017, an extension of time to file a Notice of Appeal and Memorandum of Appeal, and a stay of proceedings in Cause No. 1299 of 2013 pending the intended appeal. The Applicant contended that the ruling was delivered on a date not indicated in the notice, that the court file went missing for the better part of December, and that the intended appeal raised serious questions of law concerning the liability of a wound-up company and the interpretation of Section 3 of the Business Transfer Act. The Claimants opposed the application, submitting that no substantial loss had been demonstrated, no efforts were made to trace the file, and that granting stay would further delay a case pending since 2013. The court examined its powers under Section 7 of the Appellate Jurisdiction Act and Order 42 rule 6 of the Civil Procedure Rules. It found that the ruling was delivered as scheduled and that the missing-file claim was unsupported. Nonetheless, the court exercised its discretion, finding that the cause was at a primary stage and its progress depended on the impugned ruling. It granted a 15-day extension to lodge the appeal, stayed the proceedings pending the appeal, and awarded costs in the cause.

Key legal issues

Whether the delay in filing the Notice of Appeal was excusable

Holding

The delay was not excused by the applicant's claims; the ruling was delivered as scheduled and the respondents knew the date, but the court nonetheless exercised its discretion to grant extension of time

Reasoning

The court found that the parties knew the date of the ruling and that the respondents did not attend court on the scheduled date. The claim that the file went missing was unsupported, as there was no evidence the applicants wrote to the Deputy Registrar inquiring about the file. Despite this, the court weighed the need to save judicial time and granted a 15-day extension to lodge the appeal.

p. 3

Whether stay of proceedings should be granted pending the intended appeal

Holding

Stay of proceedings granted because the appeal has the capacity to dispose of the main case and proceeding would waste judicial time

Reasoning

The cause was at the primary stage of hearing, and its progress depended on the ruling appealed against. The court reasoned that proceeding with the main cause before the appeal is determined would be a waste of judicial time if the appeal succeeded, and that the amounts payable were colossal, so granting stay avoided the risk of assessing money payable against possibly a wrong party.

p. 4

Legal principles established

Under Section 7 of the Appellate Jurisdiction Act, the High Court (and by extension this Court) may extend time for giving notice of intention to appeal notwithstanding expiry of the time
A stay of execution or proceedings may be granted for sufficient cause, but the applicant must demonstrate substantial loss, absence of unreasonable delay, and provide security

Court orders

1.Extension of time granted to lodge the appeal by 15 days from the date of the ruling
2.Stay of proceedings in Cause No. 1299 of 2013 pending determination of the appeal
3.Costs in the cause

Authorities

Legislation

Appellate Jurisdiction ActSection 7
Employment and Labour Relations Court ActSection 12(3)
Civil Procedure RulesOrder 42 rule 6(1) & (2)

Cases cited (4)

Francis Njakwe Githiari & Another Vs Daniel Toroitich Arap Moi T/A Moi Educational Centre
[2006] eKLR
Butt Vs Rent Restriction Tribunal
[1979] eKLR
E. Torgbor Vs Ladislaus Odongo Ojuok
[2015] eKLR
Kenya Shell Limited Vs Kibiru
[1986] KLR 410

Jurisdiction invoked: Section 7 of the Appellate Jurisdiction Act Cap 9 and Section 12(3) of the Employment and Labour Relations Court Act, 2011

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "John Kahiato Bari & 3 others v New Kenya Cooperative Creamaries Limited & another [2018] KEELRC 1219 (KLR)", Case Analysis (2018). Cause No. 1299 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1219/eng@2018-07-12

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