Koech v Kipkales & another (Cause 640 of 2017) [2023] KEELRC 426 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the trial court should extend time to lodge an appeal in the Court of Appeal
The application was inopportune; the court hearing the appeal should exercise the extension-of-time discretion, and no appeal yet existed.
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.
Whether stay of execution pending appeal should be granted
Stay was refused because no appeal existed and no special circumstances were demonstrated.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion Application dated September 2, 2022 is dismissed
- 2.Each party to bear their own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.