Board of Management, Friends School, Senende v Abwala (Miscellaneous Cause E026 of 2022) [2023] KEELRC 960 (KLR)
The bottom line
#Kenya's Employment Court let a school appeal one day late and froze the judgment, ruling short delays and arguable appeals deserve a fair hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant should be granted leave to file an appeal out of time
- 2.Whether a stay of execution of the judgment of September 9, 2022 should issue pending appeal
- 3.Whether the Applicant should be required to furnish security for due performance of the decree
Key legal issues
#Extension of time to file appeal out of time
A one-day delay is not inordinate and the Applicant demonstrated arguable grounds of appeal, warranting leave to appeal out of time.
The court applied the settled principles: the application must be brought without inordinate delay and the applicant must demonstrate an arguable appeal, not one with a high probability of success. The delay here was one day only, and the draft memorandum raised arguable grounds concerning the lawfulness of the summary dismissal and the award of leave pay without concrete evidence.
Stay of execution pending appeal and security
Stay of execution was granted, but the Applicant was excused from furnishing security given its nature as a school funded from fees and government grants.
Order 42 Rule 6(2) of the Civil Procedure Rules guides the discretion. The court took judicial notice that the applicant is a school offering a public service whose major funding source is fees and government grants, and found it would be burdensome to order it to furnish security for due performance of the decree.
Legal principles established
#- Grant or refusal of extension of time to appeal out of time is at the discretion of the judge, guided by absence of inordinate delay and demonstration of an arguable appeal, which need not show high probability of success.
- Stay of execution pending appeal is discretionary and governed by Order 42 Rule 6(2) of the Civil Procedure Rules.
Court orders
#- 1.Leave granted to the Applicant to appeal out of time
- 2.The draft memorandum of appeal to be deemed duly filed upon payment of the requisite Court fees
- 3.Stay of execution of the judgment delivered on September 9, 2022 in Eldoret CM ELRC No 205 of 2019 and consequential orders pending the hearing and determination of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Eldoret (ELRC)
- Eldoret CM ELRC No 205 of 2019
- Jurisdiction invoked
- Discretion under the proviso to Section 79G of the Civil Procedure Act and Order 42 Rule 6(2) of the Civil Procedure Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, the Court grants the Applicant leave to appeal out of time and that the draft memorandum of appeal attached to the application hereto be deemed duly filed upon payment of the requisite Court fees and further that there be a stay of execution of the judgment delivered on September 9, 2022 in Eldoret CM ELRC No 205 of 2019 and consequential orders pending the hearing and determination of the appeal herein.
An arguable appeal however is not the same as an appeal with high probability of success. All the Applicant needs to demonstrate is that there is an arguable point of law or fact.
On the issue of stay of execution pending appeal, this again is at the discretion of the Judge seized of the matter but guided by the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules.
Issues in the judgment
#The judgment nowhere states the Respondent's name; the respondent is identified only by role, and the case title cannot be confirmed from the text.
The judgment refers to the applicant inconsistently, both as a body (Board of Management) and as 'him':
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of Management, Friends School, Senende v Abwala (Miscellaneous Cause E026 of 2022) [2023] KEELRC 960 (KLR)", Case Analysis (2023). ELRC (Eldoret) Misc. Application - Motion dated October 12, 2022 (arising from Eldoret CM ELRC No 205 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/960/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.