Caddel Construction Company Limited v Elias Maina Kariuki [2021] KEELRC 1929 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether leave to file an appeal out of time can be granted before the appeal is filed
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
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.
Whether Article 159(2)(d) cures the failure to file the appeal before seeking extension
No; procedural technicalities provision does not override mandatory rules of court
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.
Whether stay of execution pending appeal could be granted
Refused; no appeal was on file, so there was no appeal to stay execution pending
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.
Legal principles established
#- 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
#- 1.The application lacks merit and is dismissed with costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Seyani Brothers & Co (K) Limited v Albanus Mwangi Muia (Miscellaneous Application E090 of 2021) (Employment and Labour) [2021] KEELRC 52 (KLR)[2021] KEELRC 52 (KLR)16 Dec 2021followed
Cite this brief
#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.