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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 222 (KLR)

James O’makori t/a Lifewood Traders Auctioneers v Star Publications Limited [2021] KEELRC 222 (KLR)

Employment and Labour Relations Court
9 December 2021
1,718 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ELRC ruling at Nakuru by Onsemus N Makau J determined the applicant's Chamber Summons dated 29/9/2021 seeking stay of execution of a Taxing Master's ruling dated 2/6/2021, extension of time to lodge an appeal against that ruling, setting aside of the ruling, and re-determination of the Auctioneer's Bill of Costs by a Taxing Master other than Hon SK Ngetich. The applicant argued it was never notified of the delivery date of the ruling and only learned of it on 27/7/2021 when the taxed costs were listed for adoption as judgment, making its failure to appeal within the 7 days allowed by Rule 55(5) of the Auctioneers Rules excusable. The respondent/auctioneer opposed, relying on authorities where unexplained delays of 95 and 43 days were held unreasonable, and contending the alleged stay order was a nullity granted without jurisdiction. The court framed three issues but declined to determine the stay and setting-aside prayers as premature, holding they could only arise if leave were granted and a substantive appeal filed. Applying the Supreme Court's criteria in Nick Salat v IEBC, the court verified from its own record that the email used to communicate the ruling date differed from the address for service in the Notice of Appointment, found service improper and the delay excusable, noted no irreparable prejudice to the respondent, and granted leave to appeal within 7 days. Liberty was given to seek stay thereafter, and the respondent was awarded throw-away costs of Kshs. 10,000 payable before the hearing of the appeal.

Key legal issues

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01

Whether leave to file the appeal out of time should be granted

Holding

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.

Reasoning

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.

p. 2
02

Whether stay of execution and setting aside of the Taxing Master's ruling should be determined

Holding

These issues were premature and were left for determination after the substantive appeal is filed under Rule 55.

Reasoning

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.

p. 2
03

Whether the authorities relied on by the respondent on inordinate delay applied

Holding

The court distinguished the respondent's authorities because in those cases the applicants had not explained the delay, unlike the present applicant.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Leave granted to the applicant to file its appeal within 7 days of the ruling
  2. 2.Liberty to seek stay of execution or further proceedings on the taxed costs thereafter
  3. 3.Throw-away costs of Kshs. 10,000 awarded to the respondent/Auctioneer, to be paid before the hearing of the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 1A & 1B, 3A, 79G and 95
  • Auctioneers RulesRule 55(4) & (5)
  • ELRC Procedure RulesRule 28(3)

Cases cited (7)

  • Margaret Anindo t/a Igare Auctioneers v Harambee Sacco Society Limited & another
    [2010] eKLR
  • Ann Wairimu Mwangi & another v Nancy Wanjira Waruingi t/a Providence Auctioneers
    [2017] eKLR
  • Kenya Oil Company Limited v Jovah H Kariuki t/a Moran Auctioneers
    [2020] eKLR
  • Dilpack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR
  • Macfoy v United Africa Co. Ltd
    [1961] 3 ALL ER 1169
  • Kenya Hotels Limited v Oriental Commercial Bank Limited
    [2018] eKLR
  • Nick Salat v Independent Electoral & Boundaries Commission & 7 others
    [2014] eKLR
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

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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, "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.