China Road and Bridge Corporation v Kadinyiru (Miscellaneous Application E142 of 2022) [2023] KEELRC 128 (KLR)
The bottom line
#A Kenyan employment court refused to excuse a two-year delay in appealing, warning that parties must actively track their cases or lose the right to appeal.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to file an appeal out of time
Leave was refused because the delay of almost two years was unexplained and attributable to the Applicant's own indolence
The Court found the judgment was delivered on December 4, 2020 and the application filed on September 21, 2022, a delay of almost two years. The Applicant did not deny service of the hearing notice dated July 16, 2020 or the mention notice, nor receipt by email of the Respondent's submissions on October 6, 2020. A diligent party would have followed up the matter through the counterpart or the Court's e-filing system. The application was thus an afterthought and sufficient cause for the delay was not demonstrated.
Stay of execution pending intended appeal
Not considered, as the failure of the extension-of-time prayer removed the foundation for the stay prayer
The stay prayers, including suspension of the notification of sale and warrants of attachment over motor vehicle KBU 372 L, were premised on there being an intended appeal. Once leave to appeal out of time was declined, the Court held it unnecessary to consider stay under Order 42 Rule 6 of the Civil Procedure Rules, notwithstanding the Applicant's submissions on substantial loss and refundability.
Jurisdiction of the trial court over the workplace injury claim (raised in the application)
The Applicant argued the claim fell under WIBA and the Director of Occupational Safety and Health, but this did not save the application
The Applicant submitted that the matter flowed from a workplace injury and belonged before the Director of Occupational Safety and Health per the Supreme Court's decision in Law Society of Kenya v Attorney General. The Respondent countered that jurisdiction was not raised before the trial court and cannot be raised on appeal. The Court did not rule on this ground, disposing of the application on the delay and indolence of the Applicant.
Legal principles established
#- A litigant who receives a hearing notice and a mention notice, and is forwarded the opposing party's submissions, is expected to follow up the progress of the matter; courts will not assist indolent parties
- Where leave to appeal out of time is declined, a court need not consider a consequent prayer for stay of execution pending the intended appeal
- A counsel receiving submissions on a heard claim ought reasonably to know that judgment will follow
Court orders
#- 1.The application dated September 20, 2022 was dismissed with costs to the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the execution of its judgment of December 4, 2020 and an application under Order 42 Rule 6 of the Civil Procedure Rules for stay pending intended appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "China Road and Bridge Corporation v Kadinyiru (Miscellaneous Application E142 of 2022) [2023] KEELRC 128 (KLR)", Case Analysis (2023). ELRC NAIROBI MISC. APPL. NO. E142 OF 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/128/eng@2023-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.