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ELRCAllowedCause No 1195 of 2016· [2022] KEELRC 1058 (KLR)

Peter Mutuku Nthuku v Perimeter Protection Limited [2022] KEELRC 1058 (KLR)

Employment and Labour Relations Court
20 January 2022
LNLINNET NDOLO
1,194 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court released judgment money to a worker because the employer sat on its appeal too long without a good excuse.

What this practically means

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Executive summary

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The Claimant moved the Court by Notice of Motion dated 26th February 2021 seeking release of Kshs. 201,610 deposited in a joint interest-earning account at Co-operative Bank, University Way, plus accrued interest. The deposit had been a condition of a stay of execution granted on 9th April 2019 following judgment in the Claimant's favour delivered on 31st July 2018, the Respondent having been granted leave to file a Notice of Appeal out of time. The Claimant argued that more than 450 days had elapsed since notification that typed proceedings were ready, no appeal had been lodged, and the delay amounted to abandonment of the intended appeal, causing him pecuniary distress. The Respondent, through its Operations Manager Daniel Wamarite, blamed delays by the Court Registry in providing proceedings and a Certificate of Delay, and COVID-19 court closures. Justice Linnet Ndolo applied the Court of Appeal's decision in Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority [2019] eKLR on the function of a Certificate of Delay and held that the Respondent's inaction between December 2019 and 26th February 2020 could not be attributed to the pandemic, which had not yet reached Kenya. The delay was unexplained, no appeal was on record, and there was no basis to keep the Claimant from the fruits of his judgment. The Motion was allowed; the decretal sum plus interest was ordered released to the Claimant through his Advocates, with each party bearing their own costs.

Key legal issues

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01

Whether the delay in filing the appeal was attributable to the Respondent

Holding

The delay was not explained; the appeal window had closed before COVID-19 arose and the Certificate of Delay could not excuse the Respondent's own inaction.

Reasoning

The court found that proceedings were declared ready in December 2019, yet the Respondent did nothing until 26th February 2020, by which time the appeal period had lapsed. COVID-19 could not be blamed as the pandemic had not yet reached Kenya during that period. Reliance on a Certificate of Delay was misplaced because that certificate only discounts time consumed by the court in typing proceedings, not a party's own lethargy.

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02

Whether the decretal sum held in the joint account should be released

Holding

Yes; with no appeal on record and delay unexplained, there was no justification for continued retention of the deposit.

Reasoning

The deposit was a condition for stay pending an intended appeal. With no appeal filed and the delay unexplained, the purpose of the deposit had lapsed. The court released the decretal sum of Kshs. 201,610 plus accrued interest to the Claimant through his Advocates, while sparing the Respondent costs.

p. 2

Legal principles established

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  • A Certificate of Delay is issued to account for time consumed in typing proceedings, which period is discounted in computing the time within which an appeal must be filed.
  • Unexplained delay in lodging an appeal does not justify continuing to withhold from a successful claimant the fruits of his judgment.

Court orders

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  1. 1.The Claimant's Notice of Motion dated 26th February 2021 is allowed
  2. 2.The decretal sum of Kshs. 201,610 held in the joint interest-earning account at Co-operative Bank, University Way, plus interest accruing thereon, shall be released to the Claimant through his Advocates
  3. 3.Each party to bear their own costs of the Motion

Authorities

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Cases cited (1)

  • Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority
    [2019] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction; application for release of decretal sum deposited as a condition for stay of execution pending an intended appeal to the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Mutuku Nthuku v Perimeter Protection Limited [2022] KEELRC 1058 (KLR)", Case Analysis (2022). Cause No 1195 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1058/eng@2022-01-20

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