Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedApplication dated 29th May 2017 (ELRC claim award delivered 18th August 2016)· [2018] KEELRC 1957 (KLR)

Tony Moses Adera v Millie G. A. Odhiambo & 4 others (sued in their capacity as trustees of Cradle – The Children Foundation) & another [2018] KEELRC 1957 (KLR)

Employment and Labour Relations Court
2 May 2018
MOMAUREEN ONYANGO
1,971 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to forgive an 11-month appeal delay caused by a lawyer's repeated mistakes, letting the employee's award stand.

What this practically means

#

Executive summary

#
This was a ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango J) on a notice of motion dated 29th May 2017 in which the respondent in an employment claim, against whom an award had been delivered on 18th August 2016, sought stay of execution pending appeal and leave to file its notice of appeal out of time. The applicant explained the delay by asserting that it only learnt of the award through a letter from the claimant's advocates, and that it had then filed an application to set aside the award on the mistaken belief that the matter had proceeded by oral hearing; that application was dismissed by a ruling of 5th May 2017, after which the instant application was filed. The claimant opposed, asserting the applicant had been casual and negligent throughout, and relied on authorities on delay and lack of an arguable appeal. The court identified two issues: whether sufficient grounds for the failure to file the notice of appeal in time had been demonstrated, and whether the applicant had an arguable appeal. On the first, the court held that counsel had blundered twice - first filing a set-aside application premised on a misreading of the judgment, then a stay application which was withdrawn - and that such misapprehension and lack of diligence could not justify the delay of over eleven and a half months; the intention to appeal was an afterthought. On the second, the applicant had not demonstrated substantial loss or that the decree holder could not refund the decretal sum, and no appeal was on file. The application was accordingly dismissed with costs to the claimant/decree holder.

Key legal issues

#
01

Extension of time for filing notice of appeal

Holding

Extension refused; the delay of over 11.5 months was not justified, being attributable to counsel's negligence and misreading of the judgment, and the intention to appeal was an afterthought

Reasoning

The applicant learnt of the award, filed an application to set it aside premised on the mistaken belief there had been an oral hearing, and that application was dismissed on 5th May 2017. Counsel had not read the judgment before filing. A subsequent stay application was withdrawn. The blunder was made twice due to lack of diligence, so sufficient cause for enlargement of time under section 7 of the Appellate Jurisdiction Act was not shown.

p. 3
02

Stay of execution pending appeal

Holding

Refused; substantial loss was not demonstrated and, no appeal having been filed, stay would serve no purpose once extension of time was refused

Reasoning

Under Order 42 Rule 6(2), the applicant had to show substantial loss and that the application was made without unreasonable delay. The applicant did not show the decree holder would be unable to refund the decretal sum if the appeal succeeded, and there was no appeal on file. Stay is consequential on the extension-of-time limb, which had failed.

p. 3

Legal principles established

#
  • Counsel's misapprehension of a judgment leading to a wrong application does not constitute justifiable grounds for extension of time where the delay results from two successive wrong applications
  • Stay of execution under Order 42 Rule 6 requires demonstration of substantial loss and that the decree holder can refund monies if the appeal succeeds

Court orders

#
  1. 1.The application dated 29th May 2017 is dismissed with costs to the claimant/decree holder

Authorities

#

Legislation

  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6
  • Appellate Jurisdiction ActSection 7

Cases cited (4)

  • BOLPAK TRADING COMPANY & OTHERS -VS- BENSON MASILA MUTINDA
  • GYKA FUEL MART LIMITED -VS- BWANA MSHIRI SUNGURA
    [2013] eKLR
  • SAMEER AFRICA LIMITED -VS- AGGARWAL & SONS LIMITED
    [2003] eKLR
  • BARCLAYS BANK OF KENYA -VS- EVANS ONDUSA ONZERE
Jurisdiction invoked
Sections 7 of the Appellate Jurisdiction Act and Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Tony Moses Adera v Millie G. A. Odhiambo & 4 others (sued in their capacity as trustees of Cradle – The Children Foundation) & another [2018] KEELRC 1957 (KLR)", Case Analysis (2018). Application dated 29th May 2017 (ELRC claim award delivered 18th August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1957/eng@2018-05-02

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