P. J Dave Flowers Limited v Linet Namunda Soita [2021] KEELRC 2098 (KLR)
The bottom line
#A Kenyan court gave an employer more time to appeal an unfair dismissal award, but only if it first paid the full award into a joint account.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution of the judgment pending the intended appeal was merited under Order 42 Rule 6 of the Civil Procedure Rules.
Stay was granted because the judgment was delivered without notice to the parties, and the delay was attributable to counsel and COVID-19 disruptions; the stay was made conditional on deposit of the decretal sum.
The court accepted that the applicant did not receive notice of the judgment date. It held the obligation to follow up lay with the applicant's advocates and that mistakes of counsel should not be visited on the client. It also took account of COVID-19 disruptions to court operations. On that basis it found reasonable justification, exercising its discretion under Order 42 Rule 6 and the principles in Butt v Rent Restriction Tribunal, subject to security by deposit of the decretal sum.
Whether the court should enlarge time for filing the appeal out of time.
Time was extended for 30 days because the judgment was delivered without notice to the parties, invoking the right of appeal under the right to fair hearing and the Salat/County Executive of Kisumu principles.
Applying the extension-of-time principles from Nicholas Kiptoo Arap Korir Salat v IEBC as restated in County Executive of Kisumu, the court found a reasonable explanation for the delay: judgment was delivered without notice. Guided by Hajar Services Limited v Peter Nyangi Mwita, delivery of judgment without notice was held to be sufficient ground for enlargement of time, anchored in the right to fair hearing.
Legal principles established
#- Delivery of judgment in the absence of a party without notification constitutes sufficient ground for extension or enlargement of time to take necessary steps.
- Stay of execution may be granted conditionally upon security; failure to comply releases the decree-holder to execute.
Court orders
#- 1.Stay of execution of the judgment delivered on 6th February 2020 in Kajiado CM Employment Cause No. 4 of 2018 pending appeal, conditional upon the applicant depositing the entire decretal sum in an interest-earning account held by counsel for both parties within 30 days, failing which the Respondent shall be at liberty to execute.
- 2.Extension of time for lodging the appeal for 30 days, failing which the orders granted shall lapse.
- 3.Costs of the applications to be paid to the Respondent by the Applicant in any event.
- On appeal from
- Kajiado Chief Magistrate's Court (Employment and Labour Relations)
- Employment Cause No. 4 of 2018 – Linet Namulunda Soita v P.J. Dave Flowers Limited
- Jurisdiction invoked
- Appellate/ supervisory jurisdiction over subordinate court employment causes under the Employment and Labour Relations Court Act and Order 42 Rule 6 of the Civil Procedure Rules, with reference to Article 159(2)(d) of the Constitution
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.
- Kakiri Limited v Reuben Mauti Gisiaina [2022] KEELRC 560 (KLR)[2022] KEELRC 560 (KLR)14 Mar 2022applied
Cite this brief
#Cite this brief
Caselaw, "P. J Dave Flowers Limited v Linet Namunda Soita [2021] KEELRC 2098 (KLR)", Case Analysis (2021). Notice of Motion dated 27th July 2020 (Appeal from Kajiado Chief Magistrate Employment Cause No. 4 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2098/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.