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ELRCDismissedMiscellaneous Application (ELRC) arising from C.M. ELRC No. 1225 of 2019· [2021] KEELRC 1929 (KLR)

Caddel Construction Company Limited v Elias Maina Kariuki [2021] KEELRC 1929 (KLR)

Employment and Labour Relations Court
24 March 2021
1,605 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to extend time to appeal because the company sought permission before actually filing any appeal — file the appeal first.

What this practically means

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Executive summary

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The applicant, Caddell Construction Company Limited, moved the Employment and Labour Relations Court by notice of motion seeking leave to appeal out of time against the judgment of the magistrate in C.M. ELRC No. 1225 of 2019 (Elias Miana v Caddell Construction Company Limited) delivered on 16th October 2020, stay of execution of the decree, and deeming of a draft memorandum of appeal as filed. It attributed the delay to the court's failure to remit a copy of the judgment and to the death of its advocate, Mr Nzamba Kitonga SC. The respondent filed a preliminary objection and replying affidavit contending that no appeal or memorandum of appeal had been filed, that an appeal cannot be instituted through a miscellaneous application, that the proviso to Section 79G of the Civil Procedure Act requires the appeal to be filed before leave is sought, and that there was no proof of payment for certified proceedings. The court found that no notice or memorandum of appeal had been filed and no appeal file existed, and that no receipts evidenced payment for certified copies of the judgment and proceedings. Following the Court of Appeal's decision in Charles Karanja Kiiru v Charles Githinji Muigwa, it held that leave to admit an appeal out of time presupposes a filed appeal, and that Article 159(2)(d) is not a carte blanche to disregard mandatory rules of court. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether leave to file an appeal out of time can be granted before the appeal is filed

Holding

No; the proviso to Section 79G requires the appeal to be filed first, and the court's discretion under the proviso can only be exercised upon the existence and perusal of the appeal to be admitted

Reasoning

Relying on the Court of Appeal decision in Charles Karanja Kiiru v Charles Githinji Muigwa, the court held that admission presupposes a filed appeal and that granting leave to admit a non-existent appeal would defeat the requirements of Sections 79B and 79G of the Civil Procedure Act. The applicant had filed only a miscellaneous application with a draft memorandum attached, with no appeal file opened, and no receipts proving payment for certified proceedings.

p. 3
02

Whether Article 159(2)(d) cures the failure to file the appeal before seeking extension

Holding

No; procedural technicalities provision does not override mandatory rules of court

Reasoning

The court held that rules of court create good order and certainty in litigation and are the handmaiden of courts in the fair administration of justice. Article 159(2)(d) is not a carte blanche to parties to disregard mandatory rules. The Court of Appeal decision in Kiiru is binding, and the application was deficient in every respect that decision identified.

p. 3
03

Whether stay of execution pending appeal could be granted

Holding

Refused; no appeal was on file, so there was no appeal to stay execution pending

Reasoning

The court found no notice of appeal or memorandum of appeal had been filed, no documentary evidence of payment for certified copies of the judgment and typed proceedings was adduced, and there was no appeal file before the court. Without an existing appeal, the application for stay of execution pending the appeal could not stand.

p. 2

Legal principles established

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  • An applicant seeking admission of an appeal out of time under the proviso to Section 79G must first file the appeal and simultaneously seek leave to have it admitted out of time; leave cannot be sought to admit a non-existent appeal
  • Article 159(2)(d) is not a licence to disregard mandatory rules of court

Court orders

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  1. 1.The application lacks merit and is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 79B
  • Civil Procedure ActSection 18
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • Charles Karanja Kiiru v Charles Githinji Muigwa
    (2017) eKLR
  • Gerald M’limbine v Joseph Kangangi
    (2009) eKLR
On appeal from
Chief Magistrate's Court (C.M. ELRC No. 1225 of 2019)
1225 of 2019
Jurisdiction invoked
Proviso to Section 79G of the Civil Procedure Act; Article 159(2)(d) of the Constitution invoked by the Applicant

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Caddel Construction Company Limited v Elias Maina Kariuki [2021] KEELRC 1929 (KLR)", Case Analysis (2021). Miscellaneous Application (ELRC) arising from C.M. ELRC No. 1225 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1929/eng@2021-03-24

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