Kenalrise Limited v Muiru & 3 others (Miscellaneous Cause E028, E029, E030 & E031 of 2022 (Consolidated)) [2023] KEELRC 1051 (KLR)
The bottom line
#A Kenyan employment court allowed an 18-day late appeal and paused execution of a Kshs 239,195 award, provided the appellant secures it with a bank guarantee.
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 a memorandum of appeal out of time
- 2.Whether stay of execution of the judgment in CMELRC No. 125 of 2020 should be granted pending appeal
- 3.What security, if any, should be given for the due performance of the decree
Key legal issues
#Extension of time to file appeal
An 18-day delay, reasonably explained by late notification of the judgment and the change of advocates, was not inordinate; leave to appeal out of time was granted.
The court considered the length of the delay, the reason for it, the chances of success of the intended appeal and the prejudice to the Respondent. The Applicant only learned of the judgment on September 21, 2022 via a letter from its former advocates, and the files and consent were only received by its new advocates on October 18, 2022. The dispute over whether the Respondent was an employee was a serious arguable issue requiring canvassing.
Stay of execution and security
Stay of execution was granted conditioned on the Applicant providing a bank guarantee to the extent of the decretal sum within 60 days.
The application was not brought unreasonably late, satisfying Order 42 Rule 2. On security, balancing the interests of the multiple claimants against the Applicant's operational cash-flow needs, the court chose a bank guarantee rather than a cash deposit so as not to tie up the Applicant's working capital.
Legal principles established
#- The guiding principle on leave to appeal out of time is that the intended appellant must show sufficient cause for not filing in time, considering length and reason of delay, chances of success and prejudice to the respondent.
- Extension of time is an exercise of the court's unfettered discretion, exercised on reasons not based on whims or caprice.
- Under Order 42 Rule 2 CPR, stay requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and security for due performance of the decree.
Court orders
#- 1.Leave granted to the Applicant to file an appeal out of time, such appeal to be filed within 30 days of the ruling
- 2.Stay of execution of the judgment of Honourable Christine Menya (SRM) delivered on September 9, 2022 in CMELRC No. 125 of 2020 granted on terms that the Applicant executes, within 60 days of the ruling, a suitable bank guarantee to the extent of the decretal sum
- 3.The ruling applies to and disposes of Cause Misc. Application Numbers 29, 30 and 31 of 2022
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate court (CMELRC), Senior Resident Magistrate Christine Menya
- CMELRC No. 125 of 2020
- Jurisdiction invoked
- Inherent powers of the Employment and Labour Relations Court to enlarge time, and Order 42 Rule 2 of the Civil Procedure Rules on stay of execution
- Consolidated with
- Cause Misc. Application Numbers 29, 30 and 31 of 2022
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.
The foregoing facts are satisfactory enough to persuade the Court to grant the Applicant leave to file an appeal out of time.
The delay is not inordinate and has been reasonably explained.
In conclusion the Court hereby grants the Applicant leave to file an appeal out of time and such an appeal shall be filed within 30 days of this ruling. Secondly stay of execution is hereby granted on terms set out above.
Issues in the judgment
#The judgment refers to a single Applicant but states 'in view of the numeracy of the Claimants herein', suggesting the ruling disposes of applications by multiple claimants in consolidated applications Nos. 29, 30 and 31 of 2022.
The affidavit chronology is internally inconsistent, stating the Response was dated December 28, 2020 but filed January 7, 2020.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenalrise Limited v Muiru & 3 others (Miscellaneous Cause E028, E029, E030 & E031 of 2022 (Consolidated)) [2023] KEELRC 1051 (KLR)", Case Analysis (2023). Misc. Application No. 29 of 2022 (also disposing of Nos. 30 and 31 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1051/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.