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ELRCDismissedNot stated in the judgment excerpt (application dated 13th April 2018 in the main suit)· [2018] KEELRC 1497 (KLR)

Luka Lunayo v NYPD Restaurant & 2 others [2018] KEELRC 1497 (KLR)

Employment and Labour Relations Court
3 July 2018
HWHellen Wasilwa
1,608 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Objector, Charles Goko Waithaka, moved the court by an application dated 13th April 2018 under Order 22 Rules 50 & 51, Order 46 Rule 2, Order 51 and Section 3A of the Civil Procedure Act. He sought certification as urgent, preservation of the status quo prevailing before the ruling of Hellen Wasilwa J delivered on 19th March 2018 dismissing his objection proceedings, an injunction restraining the 2nd Respondent from proclaiming, attaching or auctioning his goods, a stay of execution of that ruling, and leave to appeal. He claimed to have received a fresh proclamation notice on 10th April 2018 and alleged he would suffer substantial and irreparable loss. The Claimant/Decree Holder opposed, describing the application as an afterthought and abuse of process by an indolent litigant who had attached no receipts evidencing ownership of the proclaimed goods and had filed no Notice of Appeal or applied for proceedings. He relied on Lalji Bhimji Sangani Builders & Contractors v Nairobi Golf Hotels Kenya Limited. The court held that the application for leave to appeal, filed on 13th April 2018, was outside the mandatory 14-day window under Order 43 rule 1(3) which expired on 4th April 2018, and could therefore not lie. On stay, the court found that with no appeal on file and leave denied, the stay could not 'hang in the air'. The court dismissed the application in its entirety and awarded costs to the Decree Holder. The judgment was delivered in open court on 3rd July 2018 by Hellen Wasilwa J.

Key legal issues

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01

Whether the application for leave to appeal was made within time

Holding

The application was out of time and could not lie; leave to appeal was refused

Reasoning

The court noted that the ruling was delivered on 19th March 2018 and the 14-day window under Order 43 rule 1(3) expired on 4th April 2018. The application was filed on 13th April 2018, outside the period. The court held the provision is couched in mandatory terms, so the late application could not be entertained.

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02

Whether a stay of execution pending intended appeal should issue

Holding

Stay was refused because no appeal had been filed and leave to appeal had been denied

Reasoning

Applying Order 42 rule 6(2), a stay requires substantial loss, absence of unreasonable delay and security. The court reasoned that with no appeal on file, and leave having been refused, there was nothing to anchor a stay; a stay cannot be granted in the abstract pending a merely intended appeal.

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Legal principles established

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  • An application for leave to appeal must be made to the court making the order within fourteen days from the date of the order, and this period is mandatory
  • A stay of execution pending appeal cannot be granted where no appeal exists or where leave to appeal has been refused

Court orders

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  1. 1.The application for stay of execution and for leave to appeal dated 13th April 2018 is dismissed
  2. 2.Costs to the Decree Holder

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure Rules (2010)Order 22 Rules 50 & 51
  • Civil Procedure Rules (2010)Order 46 Rule 2
  • Civil Procedure Rules (2010)Order 51
  • Civil Procedure Rules (2010)Order 42 rule 6(2)
  • Civil Procedure Rules (2010)Order 43 rule 1(1) and 1(3)

Cases cited (1)

  • Lalji Bhimji Sangani Builders & Contractors Vs Nairobi Golf Hotels Kenya Limited
    Nairobi HCCC No 1900 of 1995
Jurisdiction invoked
Inherent jurisdiction under Section 3A of the Civil Procedure Act Cap 21 and Order 22 Rules 50 & 51, Order 46 Rule 2 and Order 51 of the Civil Procedure Rules (2010)

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, "Luka Lunayo v NYPD Restaurant & 2 others [2018] KEELRC 1497 (KLR)", Case Analysis (2018). Not stated in the judgment excerpt (application dated 13th April 2018 in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1497/eng@2018-07-03

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