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ELRCPartially AllowedMisc Application No E008 of 2022· [2022] KEELRC 1305 (KLR)

Radar Systems Limited v Kenya National Private Security Workers Union & another (Miscellaneous Application E008 of 2022) [2022] KEELRC 1305 (KLR)

Employment and Labour Relations Court
14 July 2022
2,651 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 allowed a late appeal but refused to stop execution because the attached vehicles had already been sold to third parties.

What this practically means

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Executive summary

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This ruling of Wasilwa J dealt with the Applicant's notice of motion seeking temporary and pending-appeal stay of execution of a ruling delivered on 28th September 2021 in objection proceedings arising from execution in Nakuru CMELR 005 of 2020, leave to appeal out of time, and an injunction restraining the Respondents and Nextgen Auctioneers from attaching or selling motor vehicle KBW 808S. The Applicant, which described itself as a subsidiary (and separate legal entity) of the judgment debtor company Radar Systems Ltd, asserted that its motor vehicles KBW 77R and KCJ 206R had been wrongly attached and that it only learned of the dismissed objection proceedings on 1st April 2022 when a proclamation notice was served on its sister company, the ruling having been delivered in the absence of both parties. The Respondents opposed, arguing the application was an afterthought, that the attached vehicles had long been sold at public auction on 4th May 2021 to third parties, and that the balance of the decretal amount had since been paid. Both sides filed written submissions citing established discretionary principles on extension of time and stay. The court refused the stay orders, reasoning that since the attached items had been sold to third parties, it cannot grant orders in vain. It however granted leave to appeal out of time, on condition that the appeal be filed within 15 days of the ruling, and ordered that costs of the application abide the appeal. The ruling was delivered virtually on 14th July 2022.

Key legal issues

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01

Whether leave to appeal out of time should be granted where the applicant only learned of the ruling long after delivery

Holding

Leave was granted, conditional on filing the appeal within 15 days of the ruling

Reasoning

The ruling of 28th September 2021 was delivered in the absence of both parties and the applicant asserted it only became aware of it on 31st March/1st April 2022 when a proclamation notice was served on its sister company. Applying the discretionary principles in the cited authorities (length of delay, reason for delay, arguability and prejudice), the court found the explanation sufficient to enlarge time, though it did not disturb the outcome on stay.

p. 6
02

Whether stay of execution pending the intended appeal should issue

Holding

Stay was refused because the attached vehicles had long been sold in public auction to third parties

Reasoning

The Respondents contended that motor vehicles KBW 77R and KCJ 206R had been sold by public auction on 4th May 2021 to third parties who are not parties to the suit, long before the ruling was delivered, and that the balance of the decretal sum had since been paid. In light of that contention, granting stay would be an exercise in futility, as the court cannot grant orders in vain.

p. 6

Legal principles established

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  • A court cannot grant stay of execution orders where the subject matter has already been disposed of to third parties, as such orders would be granted in vain
  • Leave to appeal out of time may be granted even where the judgment was delivered without notice to the applicant, but subject to conditions on filing within a defined period

Court orders

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  1. 1.Leave granted to the Applicant to appeal out of time against the ruling delivered on 28th September 2021, with the rider that the appeal be filed within 15 days from the date of the ruling
  2. 2.Costs of the application to abide the appeal
  3. 3.Prayer for temporary and pending-appeal stay of execution of the 28th September 2021 ruling refused
  4. 4.Prayer for an injunction restraining the Respondents and Nextgen Auctioneers from attaching or selling motor vehicle KBW 808S refused

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure ActSection 79G
  • Civil Procedure Rules, 2010Order 40 Rule 5
  • Civil Procedure Rules, 2010Order 50 Rule 1
  • Civil Procedure Rules, 2010Order 21 rule 1
  • Civil Procedure Rules, 2010Order 42 rule 6(1)
  • Civil Procedure Rules, 2010Order 42 rule 6(2)

Cases cited (9)

  • Nicholas Mutuku Mwasuna v Patricia Mueni Kilonzo
    [2022] eKLR
  • First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others
    Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65
  • Ngoso General Contractors Ltd v Jacob Gichunge
    Civil Appeal No. 248 of 2001 [2005] 1 KLR 737
  • Equity Bank Limited v Richard Kerochi Ayiera
    [2020] eKLR
  • Kenya Railways Corporation v Erdemann Property Limited
    [2012] eKLR
  • Thiuta Mwangi v Kenya Airways
    [2003] eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 255 of 1997 (unreported)
  • Edith Gichungu Koine v Stephen Njagi Thoithi
    [2014] eKLR
  • Utalii Transport Company Limited and 3 others v NIC Bank Limited & another
    [2014] eKLR
On appeal from
Nakuru Chief Magistrate's Court (ELR)
CMELR 005 of 2020
Jurisdiction invoked
Sections 1A and 1B of the Civil Procedure Act and Order 40 Rule 5 and Order 50 Rule 1 of the Civil Procedure Rules, 2010 (leave to appeal out of time under section 79G Civil Procedure Act; stay of execution under Order 42 rule 6)

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, "Radar Systems Limited v Kenya National Private Security Workers Union & another (Miscellaneous Application E008 of 2022) [2022] KEELRC 1305 (KLR)", Case Analysis (2022). Misc Application No E008 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1305/eng@2022-07-14

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