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ELRCPartially AllowedNotice of Motion dated 16th January 2023 (High Court, Nairobi)· [2023] KEELRC 2707 (KLR)

National Transport & Safety Authority v Nthiga (Miscellaneous Application E005 of 2023) [2023] KEELRC 2707 (KLR)

High Court of Kenya
27 October 2023
AMAnna Ngibuini Mwaure
3,490 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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The National Transport and Safety Authority (NTSA), the applicant and intended appellant, moved the High Court by notice of motion dated 16th January 2023 seeking stay of execution of the judgment of Hon D.M Kivuti (PM) delivered on 4th July 2022 in MCELRC E1314 of 2020 (Dennis Muriithi Nthiga v NTSA), which ordered reinstatement of the respondent with backpay, and leave to file its appeal out of time. The applicant explained the delay in filing by the transfer of the trial magistrate and the registry's failure to avail certified proceedings, and urged that execution would render the appeal nugatory. The respondent opposed, arguing inordinate and unexplained delay, non-disclosure of a previous dismissed stay application, non-compliance with Order 42 rule 6(2), and that the decretal sum had already been recovered through garnishee proceedings against KCB bank. Framing two issues - entitlement to stay and leave to appeal out of time - the court applied Order 42 rule 6(2), the Butt v Rent Restriction Tribunal principles, Section 79G of the Civil Procedure Act and the County Executive of Kisumu extension-of-time factors. It found the applicant had demonstrated genuine efforts to obtain proceedings and should not be locked out of its right of appeal. The court granted stay of execution only as regards reinstatement, since the decretal sum and costs had already been paid; the decretal sum issue is left to the appellate court. The draft memorandum of appeal was deemed filed upon payment of fees, with the record of appeal to be filed within 30 days, failing which the orders lapse and the applicant must comply with the judgment in full. Costs were ordered to be in the intended appeal.

Key legal issues

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01

Stay of execution pending appeal under Order 42 rule 6(2)

Holding

Stay granted only in respect of reinstatement, since the decretal sum had already been paid and no substantial loss would arise on that head

Reasoning

The court applied the Order 42 rule 6(2) conditions and the Butt v Rent Restriction Tribunal guidance. The applicant had paid the decretal sum and costs via garnishee, so the only live execution was reinstatement. The applicant demonstrated efforts to obtain proceedings, which explained the delay in filing the appeal.

p. 7
02

Leave to file appeal out of time under Section 79G of the Civil Procedure Act

Holding

Leave granted; delay explained by administrative delay in the registry in availing certified proceedings, so the intended appellant should not be locked out

Reasoning

Section 79G requires filing within 30 days unless the appellant shows good and sufficient cause. Relying on County Executive of Kisumu and Abbas Sherally, the court found the applicant had explained the delay in obtaining proceedings and that the right to be heard should not be defeated. The draft memorandum was deemed filed and a 30-day timeline set for the record of appeal.

p. 6

Legal principles established

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  • An intended appellant disabled from filing an appeal by delay in procuring proceedings from the trial court should not be locked out of the right to appeal
  • Extension of time is an equitable remedy available to a deserving party at the discretion of the court, with the burden on the applicant to explain the delay

Court orders

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  1. 1.Order of stay of execution of the judgment delivered on 4th July 2022 in MCELRC E1314 of 2020 granted only as relates to reinstatement of the respondent to his original position
  2. 2.The draft memorandum of appeal (Annexure RKC 10) deemed as filed upon payment of requisite fees
  3. 3.Leave to file the appeal out of time; record of appeal to be filed within 30 days
  4. 4.If the applicant fails to adhere to the timelines, the orders will lapse and the applicant will comply with the judgment in its entirety
  5. 5.Costs of the application to be in the intended appeal
On appeal from
Milimani Chief Magistrate's Court (MCELRC)
E1314 of 2020 Dennis Muriithi Nthiga v NTSA
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Order 42 rule 6(2) of the Civil Procedure Rules; Article 165(3) of the Constitution (appellate jurisdiction of the High Court)

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, "National Transport & Safety Authority v Nthiga (Miscellaneous Application E005 of 2023) [2023] KEELRC 2707 (KLR)", Case Analysis (2023). Notice of Motion dated 16th January 2023 (High Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2707/eng@2023-10-27

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