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ELRCDismissedNot stated in judgment· [2019] KEELRC 110 (KLR)

Patrick Kiplangat Kirui v Roadtainers (Msa) Ltd [2019] KEELRC 110 (KLR)

Employment and Labour Relations Court
13 December 2019
JRJames Rika
548 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused a business permission to appeal late, ruling that being in court when judgment was delivered meant it already knew the deadline.

What this practically means

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Executive summary

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The Respondent, through its Managing Director Yusuf Ibrahim Pasta, filed an application on 16th July 2019 seeking stay of execution of a judgment delivered on 13th June 2019 pending appeal, and leave to appeal out of time with its Notice of Appeal deemed properly filed. The Respondent attributed the delay to ignorance of the judgment date and to its former advocates' failure to notify it of entry of judgment. The Claimant opposed, showing that judgment was delivered in the presence of all advocates, that the Respondent was represented throughout by the firm of Sachdeva Nabhan Swaleh, that the delay was inordinate, that the draft Memorandum of Appeal disclosed no arguable appeal, and that he could repay the decretal sum of Kshs.663,460 as he was farming in Kitale. The application was canvassed by written submissions on the record. The court found the Respondent's claim of ignorance of the judgment date to be factually incorrect, since judgment was delivered in the presence of all parties, and no further notice of entry of judgment was required. A post-judgment change of advocates could not justify the delay. No adequate reason was shown for the late filing of the Notice of Appeal, and without a validly filed Notice the intended appeal had no foundation and stay could not stand. The court also found the Claimant was not shown to be a man of straw incapable of repaying the decretal sum. The application was declined with no order on costs, dated and delivered at Mombasa on 13th December 2019 by James Rika, Judge.

Key legal issues

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01

Adequacy of reasons for delay in filing Notice of Appeal

Holding

The Respondent's claim that it was unaware of the judgment date was rejected as factually incorrect since judgment was delivered in the presence of all parties and their advocates.

Reasoning

The court found as a fact that proceedings and judgment delivery took place in the presence of all parties. The Respondent blamed its former advocates for failing to lodge the Notice of Appeal due to failure to notify it of entry of judgment, but since it was represented in court when judgment was delivered, no further notice of entry of judgment was required. A post-judgment change of advocates also could not justify the delay.

p. 2
02

Foundation of the stay of execution application

Holding

Stay of execution pending appeal cannot stand without a validly filed Notice of Appeal; the intended appeal has no foundation.

Reasoning

The stay application was predicated on the intended appeal. Since leave to appeal out of time was refused and no valid Notice of Appeal existed, the stay limb of the application collapsed. The court additionally considered whether the Claimant could repay the decretal sum if the appeal later succeeded, and found he had sworn he is a farmer capable of paying back the decretal sum.

p. 2

Legal principles established

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  • A party present in court when judgment is delivered cannot claim ignorance of the judgment date to excuse delay in filing a Notice of Appeal.
  • A change of advocates after judgment cannot justify delay in filing a Notice of Appeal.
  • An application for stay pending appeal fails where there is no validly filed Notice of Appeal giving the intended appeal a foundation.

Court orders

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  1. 1.The Application filed by the Respondent on 16th July 2019 is declined
  2. 2.No order on the costs
Jurisdiction invoked
Employment and Labour Relations Court's supervisory and procedural jurisdiction over its own proceedings; not expressly stated in the judgment

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, "Patrick Kiplangat Kirui v Roadtainers (Msa) Ltd [2019] KEELRC 110 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/110/eng@2019-12-13

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