P.N. Mashru Limited v Kahiga (Miscellaneous Application E017 of 2023) [2023] KEELRC 1590 (KLR)
The bottom line
#A Kenyan court allowed a company to appeal 59 days late and blocked execution of a Ksh 2 million award, provided the money is deposited in court within 21 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of about 59 days in lodging the intended appeal was inordinate and adequately explained
A delay of about 59 days, explained by the Applicant's lack of awareness of the Ruling of 15/2/2023 until proclamation of its properties on 13/4/2023, was not inordinate in the circumstances.
The Court applied the principle that what amounts to inordinate delay depends on the circumstances of each case, the subject matter, the nature of the case and the explanation given. The Applicant learned of the dismissal of its application to set aside the ex-parte judgment only after its movable properties were proclaimed on 13/4/2023. The Court found the Applicant to have been a vigilant litigant who followed up its case, and was satisfied with the explanation given for the delay.
Whether the intended appeal is meritorious and deserving of a day in Court
Having considered the draft memorandum of appeal annexed to the supporting affidavit, the intended appeal cannot be said to be frivolous; it is arguable and worth a day in Court.
One of the factors under First American Bank of Kenya Ltd v Gulab P Shah & 2 Others is whether the contemplated action is frivolous or deserving a day in Court. The Court examined the draft memorandum of appeal and found it raised triable issues, including whether the Respondent was employed on a fixed term contract which expired on 15/5/2019 and whether he was terminated on 31/5/2019 as alleged, hence the appeal was arguable.
Whether stay of execution of the money decree should be granted pending the intended appeal
Stay was granted conditioned on deposit of the decretal sum and payment of Auctioneer's charges within 21 days, since execution without stay would render the appeal nugatory and the Respondent did not show ability to refund.
Applying Butt v Rent Restriction Tribunal, the Court held that a stay ought to be granted so that an appeal, if successful, may not be nugatory. There was a substantial money decree in existence and the Respondent had not demonstrated or even alleged that if paid he would be able to refund the decretal sum should the appeal succeed. The Applicant's offer to deposit the entire decretal sum and Auctioneer's charges secured the Respondent's interest.
Legal principles established
#- There is no difference between 'good cause' and 'sufficient cause' for purposes of admitting an appeal out of time.
- A stay of execution ought to be granted where necessary to prevent a successful appeal from being rendered nugatory.
- Where a money decree exists and the Respondent does not demonstrate ability to refund the decretal sum, the evidential burden shifts to the Respondent to show ability to refund if the appeal succeeds.
Court orders
#- 1.The Applicant is granted leave to appeal against the Lower Court's Ruling/Orders given/delivered on February 15, 2023 in Mombasa CM ELR Case No 993 of 2019 out of time
- 2.Stay of execution of the Lower Court's decree pending hearing and determination of the intended appeal, on condition that the entire decretal sum of ksh 1,977,869.04 is deposited in Court within twenty one (21) days, with the Applicant furnishing the Respondent with a copy of the deposit slip/receipt
- 3.The Applicant shall pay the stated Auctioneer's charges of ksh 265,200 within twenty one (21) days from the date of the Ruling
- 4.Costs of the application are awarded to the Respondent
- On appeal from
- Chief Magistrate's Court at Mombasa (Employment and Labour Relations)
- Mombasa CM ELR Case No 993 of 2019
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya 2010; Section 79G of the Civil Procedure Act; Section 12(3) of the Employment and Labour Relations Court Act; Rule 8(1) & (2) of the Employment and Labour Relations Court (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P.N. Mashru Limited v Kahiga (Miscellaneous Application E017 of 2023) [2023] KEELRC 1590 (KLR)", Case Analysis (2023). Mombasa ELR Case (suit number not stated in judgment; arises from Mombasa CM ELR Case No 993 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1590/eng@2023-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.