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ELRCPartially AllowedNotice of Motion dated 27th July 2020 (Appeal from Kajiado Chief Magistrate Employment Cause No. 4 of 2018)· [2021] KEELRC 2098 (KLR)

P. J Dave Flowers Limited v Linet Namunda Soita [2021] KEELRC 2098 (KLR)

Employment and Labour Relations Court
19 February 2021
5,050 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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P.J. Dave Flowers Limited, the applicant, sought stay of execution of a judgment of the Kajiado Chief Magistrate's Court in Employment Cause No. 4 of 2018 awarding Linet Namulunda Soita about Kshs.627,937 for unlawful and unfair dismissal, together with enlargement of time to file an appeal. The judgment had been delivered on 6th February 2020, but the applicant claimed it only learnt of the delivery around 13th July 2020 and obtained the judgment copy on 20th July 2020, hence the intended appeal was out of time. The respondent opposed, arguing the application belonged in the trial court under Order 42 Rule 6, that the delay of some five months was unexplained, that the applicant had exercised no due diligence, and that the draft memorandum of appeal raised no arguable issues. She sought, alternatively, payment of half the decretal sum into a joint interest-earning account. A second application dated 14th November 2020 complained of proclamation notices issued by auctioneers despite interim stay orders. The court framed two issues: whether stay of execution pending the intended appeal was merited, and whether time to lodge a notice of appeal should be extended. Applying Order 42 Rule 6, the Butt v Rent Restriction Tribunal principles, and the Salat extension-of-time guidelines as restated in County Executive of Kisumu, the court held that judgment had been delivered without notice to the parties, that the failure to follow up was counsel's mistake which should not be visited on the client, and that COVID-19 disruptions were relevant. It granted stay of execution conditional on deposit of the entire decretal sum in an interest-earning account held by both counsel within 30 days, extended time to appeal by 30 days, and ordered the applicant to pay the respondent's costs of the applications in any event. The judgment was delivered at Nairobi on 19th February 2021 by Maureen Onyango J.

Key legal issues

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01

Whether stay of execution of the judgment pending the intended appeal was merited under Order 42 Rule 6 of the Civil Procedure Rules.

Holding

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.

Reasoning

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.

p. 6
02

Whether the court should enlarge time for filing the appeal out of time.

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Extension of time for lodging the appeal for 30 days, failing which the orders granted shall lapse.
  3. 3.Costs of the applications to be paid to the Respondent by the Applicant in any event.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42, Rule 6
  • Civil Procedure RulesOrder 22, Rule 1
  • Civil Procedure RulesOrder 46, Rule 6(2)
  • Civil Procedure RulesOrder 21, Rule 1
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 1B
  • Employment and Labour Relations Court (Procedure) Rules, 2016Section 8(1) & (2)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (14)

  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another
    (2006)
  • Selestica Limited v Gold Rock Development Limited
    (2015) eKLR
  • Kenya Ports Authority v Jennifer Alois Wandera (Administratrix of the estate of Alois Wandera Odhiambo-Deceased)
    (2016) eKLR
  • Paul Musili Wambua v Attorney General & 2 others
    (2015) eKLR
  • Hajar Services Limited v Peter Nyangi Mwita
    (2020) eKLR
  • County Government of Bomet v Moi University & 2 others
    (2016) eKLR
  • Union Insurance Co. of Kenya Ltd. v Ramzan Abdul Dhanji
    Civil Application No. Nai 179 of 1998
  • Edward Kamau v Hannah Mukui Gichuki & another
    (2015) eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others
    SC App. 16 of 2014
  • Joseph Kangethe Kabogo v Micheal K. Ngari
    HCCC 944 of 2011
  • Gerald M'limbine v Joseph Kangangi
    (2009) eKLR
  • Sankale Ole Kantai T/A Kantai & Co Advocates v Housing Finance Co. (K) Ltd
    (2014) eKLR
  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • County Executive of Kisumu v County Government of Kisumu & 8 others
    [2017] eKLR
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

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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, "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.