Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNotice of Motion dated 16th March, 2021 (arising from Milimani Commercial Court CMEL Cause No. 62 of 2018)· [2021] KEELRC 1416 (KLR)

Dolce & Lounge Limited v Wycliffe A Morumber & another [2021] KEELRC 1416 (KLR)

High Court of Kenya
22 April 2021
1,604 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
The applicant, dissatisfied with the judgment of the Chief Magistrate delivered on 28th May, 2020 in Milimani Commercial Court CMEL Cause No. 62 of 2018 awarding the respondent sums for unfair termination, filed a notice of motion on 17th March, 2021 under Order 42 Rule 6, Order 50 Rule 6 and various provisions of the Civil Procedure Act. She sought stay of execution, leave to file the appeal out of time, and that the draft memorandum of appeal be deemed filed. The application was supported by the affidavit of Tawhida Mohamed Chelimo, who explained that no notice of the judgment was given, that she only became aware of it upon service of a proclamation and notice of attachment on 11th March, 2021, and that the decretal sum of Ksh.1,805,647.33 was excessive. The respondent filed a replying affidavit (not on record) but filed no submissions. The court framed two issues: whether stay of execution should issue pending the intended appeal, and whether leave to appeal out of time should be granted. Applying section 79G of the Civil Procedure Act, the court found reasonable cause for the delay, the 30-day period having fallen within the Covid-19 court closures. On stay, applying Order 42 Rule 6(2) principles, the court found the draft memorandum raised triable issues but noted the decree was a money decree and the respondent was not shown to be impecunious. Stay was granted conditionally upon the applicant depositing a bank guarantee for the entire decretal sum within 21 days, failing which the stay lapses. Each party was to bear own costs. The application succeeded in part.

Key legal issues

#
01

Leave to file appeal out of time

Holding

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.

Reasoning

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.

p. 2
02

Stay of execution pending intended appeal

Holding

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.

Reasoning

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.

p. 3

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. 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. 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. 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.