Radar Limited v Nicholas (Appeal E126 of 2022) [2023] KEELRC 339 (KLR)

The judgment was delivered on March 31, 2022 and the application was dated July 25, 2022. Following Amal Hauliers, the court found the delay not inordinate. The applicant attributed the delay to its then counsel who neglected instructions, and the court applied the principle that mistakes of counsel should not be visited upon the client, holding the application was filed without unreasonable delay under Order 42 rule 6(2)(a).

Though the applicant failed to explain how irreparable loss would ensue, the court, guided by Charles Irungu and National Industrial Credit Bank v Wasike on rendering an intended appeal nugatory, was persuaded the applicant may suffer substantial loss. The respondent had also not indicated whether any payment would be recoverable if the appeal succeeded.

Order 42 rule 6(2)(b) requires security as a basic requirement. The applicant made no mention of security in its Supporting Affidavit. However, the respondent reasonably did not seek release of the decretal sum but only its securing, and the court ordered deposit in a joint interest-earning account of the advocates, coupled with a default clause lapsing the stay.

Rule 8 of the ELRC Procedure Rules requires an appeal within thirty days absent a specified period. Section 59 of the Interpretation and General Provisions Act and Order 50 Rule 5 confer discretion to enlarge time. Extension of time is an equitable remedy exercised judiciously; the court found the roughly 3-month delay not inordinate given the alleged inaction of former counsel and granted leave.