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ELRCDismissedMiscellaneous Application (Notice of Motion dated October 17, 2022)· [2023] KEELRC 912 (KLR)

Radar Limited v Kipkurui (Appeal E180 of 2022) [2023] KEELRC 912 (KLR)

Employment and Labour Relations Court
13 April 2023
MNMATHEWS N. NDUMA
1,191 words in judgment
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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 was a Notice of Motion dated October 17, 2022 in which the applicant sought leave for new advocates (Chomba & Mbugua) to come on record, a stay of execution of a judgment and decree of Principal Magistrate A.N. Makau delivered on June 23, 2022 (decretal sum of KES 2,201,235.73), and leave to file an appeal out of time, with the Memorandum of Appeal deemed properly filed. The applicant blamed its previous advocates for the delay and offered to provide security. The respondent, Willis Wataba Nanjendo, opposed, asserting that the applicant's new advocates filed a notice of change on June 29, 2022 - only six days after judgment - yet took no steps to obtain proceedings or lodge an appeal, and that the application was itself inordinately delayed and prompted only by warrants of attachment issued on October 7, 2022 and a proclamation of October 13, 2022. The court, MATHEWS N. NDUMA, J, considered written submissions and applied the established extension-of-time principles from Nicholas Kiptoo Arap Korir v IEBC, Henry Mukora Mwangi v Charles Gichina Mwangi, Mwangi v Kenya Airways and Leo Sila Mutiso v Rose Hellen Wangari Mwangi: length of delay, reasons for delay, prospects of appeal, and prejudice. The court found the four-month delay inordinate and deliberate, the explanation blaming previous advocates a false narrative given the new advocates' early on-boarding, and held that the applicant failed to meet the criteria. The application was dismissed with costs. No leave, stay, or extension of time was granted.

Key legal issues

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01

Whether the inordinate delay of about four months was satisfactorily explained

Holding

The delay was inordinate and unexplained; the applicant gave a false narrative by blaming previous advocates

Reasoning

Judgment was delivered on June 23, 2022. The new advocates came on record six days after judgment yet no memorandum of appeal was filed and no certified copies sought. The application was filed only after warrants of attachment and proclamation. The court found the delay deliberate and the explanation false, failing the extension criteria.

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02

What principles govern extension of time to file an appeal

Holding

The court applies the established factors: length of delay, reasons for delay, chances of appeal succeeding, and prejudice to the respondent

Reasoning

The court adopted the Supreme Court's guidance in Nicholas Kiptoo Arap Korir v IEBC and the Court of Appeal's decision in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, which set out the length of delay, reasons for it, the appeal's prospects and prejudice to the respondent as the governing considerations.

p. 3

Legal principles established

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  • The genuineness of the reasons given for delay is key to the exercise of discretion to extend time; a false narrative defeats the application
  • Delay occurring only after execution has commenced weighs against extension of time

Court orders

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  1. 1.The application dated October 17, 2022 is dismissed with costs to the respondent

Authorities

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Legislation

  • Rules of the Court (Rule 4 regime, as discussed in the cited decisions)Rule 4

Cases cited (4)

  • Nicholas Kiptoo Arap Korir v Indiependent Electoral and Boundaries Commission and 7 others
    [2014] eKLR
  • Henry Mukora Mwangi v Charles Gichina Mwangi
    Civil Application No Nai 26 of 2004
  • Mwangi v Kenya Airways Limited
    [2003] KLR 486
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai 225 of 1997 (unreported)
On appeal from
Principal Magistrate's Court
Jurisdiction invoked
Inherent discretion to extend time (Rule 4 jurisprudence of the superior courts) in an intended appeal from the Principal Magistrate's Court

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, "Radar Limited v Kipkurui (Appeal E180 of 2022) [2023] KEELRC 912 (KLR)", Case Analysis (2023). Miscellaneous Application (Notice of Motion dated October 17, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/912/eng@2023-04-13

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