Khalsa Schools & 2 others v Samuel Odhiambo Otieno [2021] KEELRC 1198 (KLR)
The bottom line
#Kenya's Employment Court allowed a school to appeal a Kshs.611,667 award late, accepting a bank guarantee instead of a cash deposit as security.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to appeal under Section 79G of the Civil Procedure Act
The Applicants met the threshold: the 8-day delay was not inordinate, was explained by late supply of the judgment copy, the draft memorandum raised arguable issues, and no prejudice was shown as security was offered.
Applying the Thuita Mwangi factors (delay, reason, arguability, prejudice, compliance with time limits, effect on administration of justice), the court found the delay minimal and satisfactorily explained because the magistrate read only the dispositive part and the full judgment was supplied on 1st October 2020. The draft memorandum of appeal showed arguable grounds, and the offer of a bank guarantee neutralised prejudice to the Respondent.
Form of security for stay of execution under Order 42 Rule 6(2)(b)
The rule does not require a cash deposit; any adequate and binding security, including a bank guarantee, suffices.
Order 42 Rule 6(2)(b) requires 'such security as the Court orders' without specifying cash. Relying on Rosengren v Safe Deposit Centres Ltd, security should be given in the form least disadvantageous to the party providing it so long as it is adequate. As the 1st Applicant is a school whose cash flow was affected by COVID-19, a bank guarantee from I&M Bank was adequate, and the Respondent would suffer no prejudice provided the guarantee covers decretal sum, interest and costs.
Legal principles established
#- An 8-day delay in filing an appeal, occasioned by late issuance of a copy of the judgment, is not inordinate and is satisfactorily explained.
- Security for due performance of a decree need not be cash; a bank guarantee from a reputable bank is adequate if it covers the decretal sum plus interest and costs.
Court orders
#- 1.Leave granted to the Applicants to file appeal out of time against the decision of Hon. Kivuti, SRM, in Milimani CMEL Case No. 658 of 2018, within 30 days from the date of the ruling
- 2.The orders of 6th October 2020 for deposit of the entire decretal sum in Court set aside; in place thereof the Applicants to deposit a Bank Security issued by I & M Bank Limited, valid and subsisting, adequate to cover the decretal sum and any further costs and interest likely to arise from the appeal until the appeal is heard and determined
- 3.Stay of execution of the decree in Milimani CMEL No. 658 of 2018 pending filing and determination of the intended appeal, conditional upon compliance with orders (i) and (ii)
- 4.Costs of the applications to be borne by the Applicants
- On appeal from
- Senior Resident Magistrate's Court (CMEL, Milimani)
- Nairobi CMEL Cause No. 658 of 2018
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (Cap 21) and Order 42 Rule 6 of the Civil Procedure Rules; Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khalsa Schools & 2 others v Samuel Odhiambo Otieno [2021] KEELRC 1198 (KLR)", Case Analysis (2021). Nairobi CMEL Cause No. 658 of 2018 (application arising therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1198/eng@2021-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.