Radar Systems Limited v Kenya National Private Security Workers Union & another (Miscellaneous Application E008 of 2022) [2022] KEELRC 1305 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether leave to appeal out of time should be granted where the applicant only learned of the ruling long after delivery
Leave was granted, conditional on filing the appeal within 15 days of the ruling
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.
Whether stay of execution pending the intended appeal should issue
Stay was refused because the attached vehicles had long been sold in public auction to third parties
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.
Legal principles established
#- 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
#- 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.Costs of the application to abide the appeal
- 3.Prayer for temporary and pending-appeal stay of execution of the 28th September 2021 ruling refused
- 4.Prayer for an injunction restraining the Respondents and Nextgen Auctioneers from attaching or selling motor vehicle KBW 808S refused
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.