Chandarana Supermarket Limited v Edward (Miscellaneous Application E111 of 2023) [2023] KEELRC 3074 (KLR)
The bottom line
#A Kenyan employment court allowed a late appeal and paused enforcement of a Kshs 325,992 unfair termination award, provided the money is deposited in court within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to file appeal under section 79G of the Civil Procedure Act
The delay of less than a month was not inordinate and was explained; leave to file the appeal out of time was granted
The court applied the Thuita Mwangi factors: period of delay, reason for delay, arguability and prejudice. Judgment was delivered on 6th April 2023; counsel missed it by inadvertent failure to diarize and learned of it on 29th May 2023. The 30 days lapsed on 6th May 2023 and the application was filed on 2nd June 2023 - a short, explained delay. The draft memorandum raised arguable grounds, especially on compensation, and courts discourage turning away litigants who come within a reasonable time.
Stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules
Stay granted on condition that the applicant deposits the decretal sum in court within 30 days
The court applied the twin conditions of substantial loss and security, and the requirement of no unreasonable delay. Having allowed the appeal to be filed out of time, refusal of stay would prejudice the applicant if the appeal succeeded; a stay would avoid rendering the appeal nugatory. The stay was made conditional on a deposit of the decretal sum as security, satisfying Order 42 rule 6(2)(b).
Legal principles established
#- An appeal may be admitted out of time if the appellant shows good and sufficient cause for the delay
- Substantial loss is not established merely by the fact that execution has been put in motion
- Courts discourage turning away a litigant unheard who approaches the court within a reasonable time
Court orders
#- 1.The Applicant is allowed to file the appeal out of time
- 2.Stay of execution of the judgment and decree of 6th April 2023 granted pending appeal, conditional on the Applicant depositing the decretal sum in Court within 30 days
- 3.Costs of the application to abide the outcome of the appeal
- On appeal from
- Milimani Chief Magistrate's Court (Commercial Courts)
- CMEL No. E234 of 2021
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act and section 12(3) of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chandarana Supermarket Limited v Edward (Miscellaneous Application E111 of 2023) [2023] KEELRC 3074 (KLR)", Case Analysis (2023). Not stated in judgment (arising from Milimani CMEL No. E234 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3074/eng@2023-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.