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ELRCDismissedNot stated in judgment· [2020] KEELRC 550 (KLR)

Ondicho Meshackrakamba v Kuldip Singh & 4 others [2020] KEELRC 550 (KLR)

Employment and Labour Relations Court
7 August 2020
1,843 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to extend time to appeal and stay execution because the judgment debtors delayed without explanation and behaved badly.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) determined two applications dated 21st and 23rd January 2020 by the respondents/judgment debtors seeking temporary stay of execution, stay of execution pending an intended appeal, and extension of time to file a notice of appeal and the appeal itself. Judgment had been delivered on 29th November 2019 with a 30-day stay of execution, which expired without the respondents settling the decretal sum or seeking extension. The decree holder then instructed auctioneers, who proclaimed against the respondents' goods in January 2020. The applicants claimed the 1st respondent was out of the country at judgment and the School was closed, and noted the decretal sum had been deposited in court. The claimant and the auctioneer countered in replying affidavits, describing harassment and unlawful arrest during the first proclamation attempt, and asserting the School had been closed and sold in 2019. Relying on section 7 of the Appellate Jurisdiction Act and Order 42 Rule 6 of the Civil Procedure Rules, and applying the Court of Appeal's criteria in Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, the court found the delay unexplained and the applicants undeserving, holding that stay of execution is an equitable remedy requiring clean hands. The applications were dismissed with costs assessed at Kshs.5,000, and the decretal sum deposited in court was ordered released to the decree holder forthwith.

Key legal issues

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01

Whether the delay in filing notice of appeal was adequately explained

Holding

The delay was not justified; the 1st applicant was notified of the judgment and failed to prove he was abroad or that the School was closed

Reasoning

The court found the 1st applicant admitted being notified of the judgment. He did not prove he was out of the country at the time of delivery, nor that the School was in existence since the decree holder deposed it had been closed and sold. He did not explain why he could not instruct counsel remotely, nor state when he returned to the country, being present at the time of proclamation.

p. 3
02

Whether stay of execution pending appeal should be granted

Holding

Stay refused because the applicants did not come to equity with clean hands

Reasoning

The court held that stay of execution is an equitable remedy requiring clean hands. The applicants failed to deny harassing the Auctioneer and Decree Holder, causing their arrest and detention at Parklands Police Station. They had also squandered the 30-day stay previously granted without opposing, letting it expire without settling the decretal sum or seeking extension.

p. 3

Legal principles established

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  • In deciding whether to extend time for filing an appeal the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent
  • Stay of execution is an equitable remedy and the applicant must come to equity with clean hands

Court orders

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  1. 1.The applications dated 21st and 23rd January 2020 are dismissed with costs assessed at Kshs.5,000
  2. 2.The decretal sum deposited in court to be released to the Decree Holder forthwith

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (1)

  • Paul Musili Wambua v Attorney General & 2 Others
    [2015] eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act; Order 42 Rule 6 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, "Ondicho Meshackrakamba v Kuldip Singh & 4 others [2020] KEELRC 550 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/550/eng@2020-08-07

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