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ELRCDismissedNotice of Motion dated 6/7/2021 (arising from Nairobi CMEL No. 389 of 2018)· [2023] KEELRC 2652 (KLR)

Munyithya v Bandas & Grill Limited (Miscellaneous Application E124 of 2021) [2023] KEELRC 2652 (KLR)

Employment and Labour Relations Court
26 October 2023
879 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to excuse a four-month delay in filing an appeal because the applicant showed no good reason and had not diligently prepared it.

What this practically means

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Executive summary

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This was a notice of motion dated 6 July 2021 in which the applicant, Rajiv Shah, sought leave to lodge an appeal out of time against a judgment delivered on 25 February 2021 by Hon. Kagoni in Nairobi CMEL No. 389 of 2018, deeming of a Memorandum and Record of Appeal as duly filed, and stay of execution pending the intended appeal. The applicant explained that he only learnt of the judgment upon being served with a letter demanding settlement of a decretal sum of Kshs. 450,815, and that he lacked the judgment and proceedings needed to compile a Record of Appeal. The respondent opposed, contending that a judgment notice had been served a month before delivery, that the application was an abuse of process, and that any stay should be conditional on deposit of the decretal sum. The Court noted the application was filed four months after judgment, that the applicant did not deny receipt of the judgment notice, and that no request for proceedings and judgment was exhibited. Applying section 79G and the authorities of Charles N. Ngugi v ASL Credit Limited and Mugo & Others v Wanjiru, the Court held that the applicant had not shown good and sufficient cause for the delay nor good faith in pursuing the appeal. The motion was dismissed with costs on 26 October 2023.

Key legal issues

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01

Extension of time to file an appeal under section 79G

Holding

The applicant failed to demonstrate good and sufficient cause for the four-month delay; the application was dismissed.

Reasoning

The Court noted the application was filed four months after judgment, the applicant did not deny receipt of the judgment notice served a month before delivery, and no steps to obtain certified proceedings or judgment were deponed to or exhibited. The Court relied on Charles N. Ngugi v ASL Credit Limited and Mugo & Others v Wanjiru on the requirement that the appeal be filed before or with the extension application.

p. 3
02

Stay of execution pending intended appeal

Holding

Stay was refused because the conditions for granting stay, including good faith in pursuing the appeal, were not satisfied.

Reasoning

The Court held that stay pending appeal requires the applicant to have diligently taken steps towards lodging the appeal. Since the applicant had neither filed a memorandum of appeal nor requested proceedings and judgment, and had delayed inordinately, the Court was not satisfied that the requisites for stay were met.

p. 3

Legal principles established

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  • Under section 79G, an appeal out of time may be admitted only where the applicant shows good and sufficient cause, and the intended appeal ought to have been filed before or together with the application for extension of time.

Court orders

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  1. 1.The application dated 6/7/2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesSection 79G

Cases cited (2)

  • Charles N. Ngugi v ASL Credit Limited
    [2022] eKLR
  • Mugo & Others v Wanjiru & another
    [1970] EA 482
On appeal from
null (decision sought to be appealed was from a subordinate court in Nairobi CMEL No. 389 of 2018 delivered by Hon. Kagoni; the present ruling is on a notice of motion, not an appeal)
Nairobi CMEL No. 389 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to appeal out of time) and the Court's inherent power to grant stay of execution pending appeal

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, "Munyithya v Bandas & Grill Limited (Miscellaneous Application E124 of 2021) [2023] KEELRC 2652 (KLR)", Case Analysis (2023). Notice of Motion dated 6/7/2021 (arising from Nairobi CMEL No. 389 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2652/eng@2023-10-26

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