James O’makori t/a Lifewood Traders Auctioneers v Star Publications Limited [2021] KEELRC 222 (KLR)
The bottom line
#Kenya's Employment Court allowed a late appeal against an auctioneer's taxed costs because notice of the ruling was emailed to the wrong address.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to file the appeal out of time should be granted
Leave was granted because the applicant was not properly served with notice of the delivery date of the ruling, and the resulting delay was not deliberate.
The court applied the Nick Salat criteria for extension of time. It confirmed from the court record that the email address used to communicate the ruling date differed from the address for service in the Notice of Appointment. The applicant therefore became aware of the ruling only on 27/7/2021, after the 7-day period under Rule 55(5) had lapsed. The delay was thus excusable, the applicant had come to court without undue delay once aware, and the respondent had not demonstrated irreparable prejudice.
Whether stay of execution and setting aside of the Taxing Master's ruling should be determined
These issues were premature and were left for determination after the substantive appeal is filed under Rule 55.
The court reasoned that the prayers for stay and for setting aside the ruling could only be considered if leave to appeal out of time was granted and the substantive appeal actually filed under Rule 55 of the Auctioneers Rules. Having granted leave, the court gave liberty to move for stay thereafter rather than determining the stay and setting-aside prayers on the application as filed.
Whether the authorities relied on by the respondent on inordinate delay applied
The court distinguished the respondent's authorities because in those cases the applicants had not explained the delay, unlike the present applicant.
The respondent relied on Ann Wairimu Mwangi, Kenya Oil Company and Dilpack Kenya Limited where delays of 95 and 43 days were held unreasonable. The court distinguished them because in those cases the applicants did not explain the delay in filing the appeal in time, whereas here the delay was attributable to improper service of notice of the ruling date.
Legal principles established
#- Extension of time is not a right but an equitable remedy available to a deserving party who must lay a basis for it, explain the delay, and show absence of prejudice to the other side.
- Notice of a ruling served on an email address different from the address for service given in the Notice of Appointment is improper service, and delay attributable to such improper service is excusable.
Court orders
#- 1.Leave granted to the applicant to file its appeal within 7 days of the ruling
- 2.Liberty to seek stay of execution or further proceedings on the taxed costs thereafter
- 3.Throw-away costs of Kshs. 10,000 awarded to the respondent/Auctioneer, to be paid before the hearing of the appeal
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution of Kenya; Sections 1A & 1B, 3A, 79G and 95 of the Civil Procedure Act; Rule 55(4) & (5) of the Auctioneers Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James O’makori t/a Lifewood Traders Auctioneers v Star Publications Limited [2021] KEELRC 222 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/222/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.