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ELRCPartially AllowedNakuru CMCC No. 137 of 2017 (application dated 19th April 2021)· [2021] KEELRC 1254 (KLR)

Esther Njambi t/a Elister Enterprises v Cornelius Wanjala Makona [2021] KEELRC 1254 (KLR)

High Court of Kenya
8 July 2021
1,482 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court let a late appeal proceed because Covid-19 caused the delay, but only if the judgment money is first deposited.

What this practically means

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Executive summary

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This ruling of the High Court at Nakuru (Hellen Wasilwa, J) determined an application dated 19th April 2021 by Esther Njambi t/a Elister Enterprises, the defendant in Nakuru CMCC No. 137 of 2017, in which Cornelius Wanjala Makona had obtained judgment on 12th March 2021 for compensation for an industrial accident. The applicant sought enlargement of time to appeal out of time under section 79G of the Civil Procedure Act, leave to have her memorandum of appeal deemed filed, and stay of execution pending appeal. In support, her advocate swore that staff at the firm had tested positive for Covid-19 after judgment, forcing closure of the office, and that restricted access to and closure of the Nakuru law courts for two weeks in April 2021 had prevented timely filing. The respondent opposed, contending the application was an abuse of process and a ploy to delay the fruits of his judgment, and sought in the alternative that the decretal sum be deposited. The court disposed of the matter on written submissions. Finding the delay explained by the Covid-19 infection of staff and court closure, of which the court was itself aware, it granted leave to appeal out of time within not more than 7 days and allowed stay of execution pending appeal, conditional on deposit of the entire decretal sum in an interest earning account in the joint names of counsel within 14 days, with execution to proceed in default. Costs were to abide the outcome of the appeal. All authorities cited were from counsel's submissions and none was expressly adopted.

Key legal issues

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01

Extension of time to appeal under section 79G of the Civil Procedure Act

Holding

Leave to appeal out of time granted because the delay was explained by Covid-19 infection of the applicant's counsel's staff and closure of the court premises

Reasoning

The court found the applicant had explained the reasons preventing the timely filing of the appeal: staff at the advocate's firm tested positive for Covid-19 necessitating office closure, and the Nakuru law courts closed for two weeks in April 2021. The court took judicial awareness of these facts, noting even court staff had tested positive and the premises had closed. On that basis it concluded the failure to file within time could have emanated from valid reasons and exercised its discretion to grant leave.

p. 3
02

Stay of execution pending appeal and security for the decretal sum

Holding

Stay granted conditional on deposit of the entire decretal sum in an interest earning account in the joint names of the parties' advocates within 14 days

Reasoning

Balancing the applicant's interest in having her appeal heard against the respondent's entitlement to the fruits of his judgment, the court allowed stay pending the hearing of the appeal but conditioned it on the deposit of the entire decretal sum in an interest earning account in the joint names of counsel on record within 14 days, with execution to proceed in default.

p. 3

Legal principles established

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  • A party seeking enlargement of time must provide valid reasons for the delay; where the delay is occasioned by valid reasons such as the Covid-19 pandemic and court closure, leave to appeal out of time may be granted

Court orders

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  1. 1.Leave granted to the applicant to file the appeal out of time, and in any event not more than 7 days
  2. 2.Stay of execution of the judgment/decree pending hearing of the appeal, conditional upon deposit of the entire decretal sum in an interest earning account held in the joint names of counsel on record within 14 days
  3. 3.In default of the deposit, execution to proceed
  4. 4.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 42 Rule 6(1)
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (8)

  • First American Bank of Kenya Ltd v Gulab P. Shah & 2 others
    [2002] 1EA 65, Nairobi (Milimani) HCCC No. 225 of 2000
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
  • Kinyunjuri Muguta v Wotuku Muguta
    [2018] eKLR
  • Joseph Gitahi Gachau & another v Pioneer Holdings (A) Limited & 2 others
    [2009] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Attorney General v Okiya Omtatah Okoiti
    [2019] eKLR
  • Kenya Hotel and Allied Workers' Union v Mada Holidays Limited
    [2021] eKLR
  • Edwin K. Too v Paul K. Sitienei
    [2020] eKLR
On appeal from
Chief Magistrates' Court, Nakuru
CMCC No. 137 of 2017
Jurisdiction invoked
Section 79G, 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Esther Njambi t/a Elister Enterprises v Cornelius Wanjala Makona [2021] KEELRC 1254 (KLR)", Case Analysis (2021). Nakuru CMCC No. 137 of 2017 (application dated 19th April 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1254/eng@2021-07-08

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