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ELRCDismissedNot stated in the judgment (Notice of Motion dated 29.6.2020)· [2021] KEELRC 2196 (KLR)

Kenya Hotels & Allied Workers Union v Mada Holidays Limited [2021] KEELRC 2196 (KLR)

Employment and Labour Relations Court
5 February 2021
OMONESMUS N. MAKAU
2,887 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 excuse a 100-day delay in filing an appeal, ruling that Covid-19 did not close court registries.

What this practically means

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Executive summary

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The Respondent/Applicant moved the Employment and Labour Relations Court by Notice of Motion dated 29.6.2020 seeking leave to file an appeal out of time against the court's judgment of 6.3.2020, an order that the Notice of Appeal be deemed filed, and a stay of execution of the decree of approximately Kshs.3.09 million. The applicant blamed the Covid-19 pandemic, the Chief Justice's 15.3.2020 scale-down of court activities, and counsel's closure of his chambers for the failure to file the Notice of Appeal within the 14 days allowed under Rule 75 of the Court of Appeal Rules. The claimant opposed, contending the court registries remained open, counsel's office closure predated the scale-down, the delay was negligent, and the application failed the Order 42 Rule 6 threshold for stay. Justice Onesmus N. Makau found the applicant had not acted diligently: it filed nothing within the 14 days and made no move until late June 2020, over 100 days later. The court held the scale-down did not amount to a complete closure of the registries, which continued receiving documents with statutory timelines, and that the delay was deliberate or due to negligence. Relying on Shah v Mbogo and County Executive of Kisumu, the court rejected the extension of time and, consequently, found no basis for staying the judgment, noting also that costs had not yet been taxed so no imminent execution loomed. The application was dismissed with costs on 5 February 2021, the judgment being delivered online under the Covid-19 directions with the parties' consent.

Key legal issues

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01

Whether leave to file a Notice of Appeal out of time should be granted

Holding

Leave refused; the applicant did not act diligently and the delay was deliberate, negligent and unexplained.

Reasoning

The court found the applicant never attempted to file a Notice of Appeal within the 14 days, and did nothing until 25.6.2020 despite having instructions to appeal. The scale-down of court operations did not close the registries, and a delay of over 100 days before applying was unreasonable and prejudicial to the claimant. Applying Shah v Mbogo and County Executive of Kisumu, no sufficient reason justified the delay.

p. 3
02

Whether stay of execution of the judgment of 6.3.2020 should be granted

Holding

Stay refused because leave to appeal out of time had been refused, and no imminent execution was shown as costs were not yet taxed.

Reasoning

Since the intended appeal could not proceed without the extension of time, the foundation for a stay fell away. Further, the court observed no imminent risk of execution because the taxed costs remained undetermined, so the applicant could not demonstrate that the appeal would be rendered nugatory.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party; the applicant bears the burden of explaining the whole period of delay to the court's satisfaction.
  • Discretion to extend time is not designed to assist a party who has deliberately delayed the course of justice.
  • The Covid-19 scale-down of court operations did not amount to a complete closure of court registries, which remained open to receive documents with statutory timelines.

Court orders

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  1. 1.The Notice of Motion dated 29.6.2020 is dismissed
  2. 2.Costs of the application awarded to the claimant

Authorities

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Legislation

  • Court of Appeal RulesRule 75
  • Civil Procedure RulesOrder 42 Rule 6; Order 50 Rule 6
  • ELRC Procedure RulesRule 28(3)

Cases cited (11)

  • Thuita Mwangi v Kenya Airways
    [2003] eKLR
  • Edwin K. Too v Paul K. Sitienei
    [2020] eKLR
  • Judith Walekwa v Ronald Olunga & 2 others
    [2020] eKLR
  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • RWW v EKW
    [2019] eKLR
  • Kenya Commercial Bank Ltd v Sun city Properties Ltd & 5 others
    [2012] eKLR
  • Gianfranco Manethi & another v Africa Merchant Assurance Company Ltd
    [2019] eKLR
  • Abdul Azziz Ngoma v Mungai Muthayo
    [1976] KLR 61
  • County Executive of Kisumu v County Government of Kisumu & 8 others
    [2017] eKLR
  • Patriotic Guards Ltd v James Kipchirchir Sambu
    [2017] eKLR
  • Shah v Mbogo and Another
    [1967] EA 116
Jurisdiction invoked
Rule 75 of the Court of Appeal Rules; Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules (ELRC jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kenya Hotels & Allied Workers Union v Mada Holidays Limited [2021] KEELRC 2196 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 29.6.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2196/eng@2021-02-05

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