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ELRCDismissedNotice of Motion dated September 2, 2022 (Ruling)· [2023] KEELRC 426 (KLR)

Koech v Kipkales & another (Cause 640 of 2017) [2023] KEELRC 426 (KLR)

Employment and Labour Relations Court
20 February 2023
3,133 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually by Dr. Jacob Gakeri J on February 20, 2023, determined a Notice of Motion dated September 2, 2022 by the Respondents/Applicants seeking leave to file an appeal out of time from a judgment of July 27, 2022 and a stay of execution of that judgment pending their intended appeal. The application was anchored on Section 7 of the Appellate Jurisdiction Act, Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, and supported by the affidavit of Stephen Kipkorir Bundotich, who cited substantial loss, the Claimant/Respondent's unknown means, and willingness to furnish security. The Claimant/Respondent, Judy Chepngeno Koech, opposed the application as frivolous and abusive, noting that only pay in lieu of notice and housing allowance were challenged, that she had partly been paid Kshs 280,000/= and issued a certificate of service, and that any stay should be conditioned on deposit of the decretal amount in a joint interest-earning account. The court framed a single issue: whether the application was merited. It held that since no Notice of Appeal or Memorandum of Appeal had been filed, there was no appeal before any court but only an intended appeal; the court expected to hear the appeal has similar, more elaborate powers under the Court of Appeal Rules and is better placed to extend time, and its decisions would bind the trial court. No special circumstances for stay were demonstrated, and none of the seven cited authorities was analogous, five relating to applications in the High Court against subordinate courts. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the trial court should extend time to lodge an appeal in the Court of Appeal

Holding

The application was inopportune; the court hearing the appeal should exercise the extension-of-time discretion, and no appeal yet existed.

Reasoning

The court noted the applicants sought extension of time in the trial court although the Court of Appeal, under Rule 4 and Rule 5(2)(b) of the Court of Appeal Rules, has similar and more elaborate powers and is better placed to assess the Draft Memorandum of Appeal. Since no Notice of Appeal or Memorandum had been filed, there was no appeal before any court. The Court of Appeal would not be bound by a determination made by a co-ordinate court.

p. 4
02

Whether stay of execution pending appeal should be granted

Holding

Stay was refused because no appeal existed and no special circumstances were demonstrated.

Reasoning

The applicants relied on Order 42 Rule 6(2) principles (substantial loss, no unreasonable delay, security). The court found that since no appeal was on file, there was nothing whose success could be rendered nugatory. The applicant also failed to explain the one-month delay in obtaining the certified judgment. Moreover, five of the seven authorities cited concerned applications before the High Court against subordinate courts, and none was analogous.

p. 6

Legal principles established

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  • The court with jurisdiction to hear and determine the appeal should exercise the discretion to extend time for filing the appeal
  • Stay of execution under Order 42 Rule 6(2) requires substantial loss, no unreasonable delay and security

Court orders

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  1. 1.The Notice of Motion Application dated September 2, 2022 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 21 Rule 1
  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (15)

  • Kinyunjuri Muguta V Wotuku Muguta
    (2018) eKLR
  • HGE V SM
    (2020) eKLR
  • James Wangalwa & another V Agnes Naliaka Cheseto
    (2012) eKLR
  • National Industrial Credit Bank Ltd V Aquinas Francis Wasike & another
    (2006) eKLR
  • Victor Ogola V Mary Waithe Kihiu
    (2021) eKLR
  • Butt V Rent Restriction Tribunal
    (1979) eKLR
  • Cecilia Karuru Ngayu V Barclays Bank of Kenya Ltd & another
    (2016) eKLR
  • GN Muema P/A Mt Kenya Maternity & Nursing Home V Miriam Maalim Bishar & another
    (2018) eKLR
  • Leo Sila Mutiso V Wangari Mwangi
    [1999) 2 EA 231
  • Karny Zaharya & another V Shalom Levi
    C Appl No 80 of 2018
  • Imperial Bank Ltd (in receivership) & another V Alnasir Popat & 18 others
    (2018) eKLR
  • Abdul Azizi Ngoma V Mungai Mathayo
    (1976) KLR 61
  • Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & others
    (2014) eKLR
  • Wilson V Church (No 2)
    12 CH D (1879) 545
  • Attorney General V Emerson & others
    (1889) 244 BD 56
On appeal from
Employment and Labour Relations Court (trial court)
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act; Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act (Cap 21)

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, "Koech v Kipkales & another (Cause 640 of 2017) [2023] KEELRC 426 (KLR)", Case Analysis (2023). Notice of Motion dated September 2, 2022 (Ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/426/eng@2023-02-20

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