Dolce & Lounge Limited v Wycliffe A Morumber & another [2021] KEELRC 1416 (KLR)
The bottom line
#The High Court allowed a delayed appeal against an unfair termination award, but only froze the debt if the appellant secured the full amount with a bank guarantee within 21 days.
What this practically means
#Executive summary
#Key legal issues
#Leave to file appeal out of time
Leave granted; reasonable cause established where the applicant moved promptly upon learning of the judgment through service of a proclamation during the Covid-19 period.
Judgment was delivered on 28th May, 2020 and the application filed on 17th March, 2021 after service of a proclamation and notice of attachment on 11th March, 2021. The 30-day window under section 79G fell within the Covid-19 period when courts were closed. The applicant acted with speed upon service, satisfying the court that there was good and sufficient cause for the delay, warranting enlargement of time.
Stay of execution pending intended appeal
Stay granted but conditional; the applicant must secure the decree by bank guarantee for the entire decretal sum within 21 days, failing which the stay lapses.
The draft memorandum of appeal raised triable issues on liability for unfair termination and quantum, showing the appeal was not frivolous. Because the decree was a money decree and the respondent was not shown to be impecunious, the appeal would not be rendered nugatory. However, security for due performance of the decree was imperative, justifying a conditional stay by way of a bank guarantee.
Legal principles established
#- An appeal may be admitted out of time where the appellant shows good and sufficient cause under section 79G of the Civil Procedure Act.
- For a money decree, an appeal is not rendered nugatory where the decree holder is not shown to be impecunious and able to refund.
Court orders
#- 1.Leave granted to file the memorandum of appeal and appeal out of time against the judgment of the Chief Magistrate delivered on 28th May, 2020 in Milimani Commercial Court CMEL Cause No. 62 of 2018
- 2.Stay of execution of judgment/decree in Milimani Commercial Court CMEL No. 62 of 2018 pending hearing and determination of the intended appeal, conditional on the applicant issuing a Bank Guarantee to the court for the entire decretal sum from a reputable commercial bank within 21 days, in default of which the stay lapses
- 3.Each party to bear own costs
- On appeal from
- Chief Magistrate's Court, Milimani Commercial Courts
- CMEL Cause No. 62 of 2018
- Jurisdiction invoked
- Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules; sections 1A, 1B, 3A, 63(e), 79G and 95 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dolce & Lounge Limited v Wycliffe A Morumber & another [2021] KEELRC 1416 (KLR)", Case Analysis (2021). Notice of Motion dated 16th March, 2021 (arising from Milimani Commercial Court CMEL Cause No. 62 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1416/eng@2021-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.