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ELRCPartially AllowedNot stated in the judgment (arising from Nakuru CMELRC E164 of 2022)· [2023] KEELRC 2467 (KLR)

Board of Management Ngata Secondary School v Onyango (Miscellaneous Civil Application E24A of 2023) [2023] KEELRC 2467 (KLR)

Employment and Labour Relations Court
17 October 2023
HWHellen Wasilwa
1,558 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 ruling by Wasilwa J of the Employment and Labour Relations Court determines two consolidated applications by the applicant, represented by the Hon Attorney General through Senior State Counsel Fronicah Shirika. The first, dated June 8, 2023, sought extension of time to file an appeal out of time against the judgment of Hon Orenge delivered on January 27, 2023 in Nakuru CMELRC E164 of 2022, in which the applicant was ordered to pay the respondent Kshs 428,729, together with a stay of execution and an order that auctioneers tax their bill to scale. The second, dated June 12, 2023, sought a stay of execution pending the intended appeal. The applicant explained that it first learned of the suit when served with notice of entry of judgment on March 4, 2023; it promptly sought to set aside the ex parte judgment on March 6, 2023, but that application was dismissed on May 24, 2023, prompting the decision to appeal. The respondent opposed both applications, alleging fatal discrepancies in the supporting affidavit, contending the applicant was duly served with pleadings in September 2022 and that its application was dilatory since no appeal had been filed. The respondent alternatively sought conditional stay upon deposit of the decretal sum and payment of auctioneers fees. The court found that the applicant's contention that the claimant was awarded judgment contrary to law raised a triable issue meriting consideration on merit. Exercising its discretion, the court granted leave to appeal out of time, requiring the appeal to be filed within 14 days, and stayed execution on condition that the entire decretal sum be deposited in court and auctioneers costs be agreed or taxed within 30 days. Costs were made to abide the outcome of the appeal.

Key legal issues

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01

Extension of time to file an appeal out of time

Holding

The court found the delay excusable and, noting a triable issue on the quantum awarded, exercised its discretion to grant leave to appeal out of time.

Reasoning

The applicant explained it first learned of the suit upon service of the notice of entry of judgment on March 4, 2023, and promptly moved to set aside the judgment on March 6, 2023, which application was dismissed on May 24, 2023. The court identified as a triable issue whether the trial court erred in awarding underpayment for 39 months beyond the 36-month limitation and in awarding three months' notice pay contrary to the contract. The court exercised its discretion in the applicant's favour.

p. 4
02

Stay of execution pending appeal

Holding

Stay of execution was granted conditional on deposit of the entire decretal sum in court and payment of auctioneers costs.

Reasoning

The applicant apprehended execution as a proclamation notice was to lapse on June 13, 2023. The respondent itself proposed that, if the application were allowed, the applicant should deposit the decretal sum of Kshs 428,729 and pay auctioneers fees of Kshs 73,859. The court granted the stay on those conditions, securing the respondent's position pending the intended appeal.

p. 4

Legal principles established

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  • Even in undefended causes, the claimant retains the burden of proving its case to the required standard.

Court orders

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  1. 1.Leave to file appeal out of time granted; appeal to be filed within 14 days
  2. 2.Stay of execution of the judgment and decree in Nakuru CMELRC E164 of 2022 pending appeal, on condition that the entire decretal sum be deposited in court
  3. 3.Auctioneers costs to be agreed upon or taxed within 30 days and paid accordingly
  4. 4.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 79G
  • Civil Procedure Actsection 95
  • Civil Procedure RulesOrder 22 rule 22
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 50 rule 3
  • Constitution of Kenyaarticle 58
  • Constitution of Kenyaarticle 50

Cases cited (1)

  • Shamakame Adam Mbui v Kyoga Hauliers (K) Ltd
    [2013] eKLR
On appeal from
Nakuru Chief Magistrate's Court (ELRC), per Hon Orenge
Nakuru CMELRC E164 of 2022
Jurisdiction invoked
Sections 3A, 79G and 95 of the Civil Procedure Act; Orders 22 rule 22, 42 rule 6 and 50 rule 3 of the Civil Procedure Rules; Articles 50 and 58 of the Constitution

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, "Board of Management Ngata Secondary School v Onyango (Miscellaneous Civil Application E24A of 2023) [2023] KEELRC 2467 (KLR)", Case Analysis (2023). Not stated in the judgment (arising from Nakuru CMELRC E164 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2467/eng@2023-10-17

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