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ELRCAllowedMiscellaneous Case E025 of 2023· [2023] KEELRC 3239 (KLR)

Biyondi v Aura (Miscellaneous Case E025 of 2023) [2023] KEELRC 3239 (KLR)

Employment and Labour Relations Court
7 December 2023
1,863 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a business to appeal late and halted the money judgment, but only after it paid the award into court as security.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Mombasa (Agnes Kitiku Nzei J) on the Applicant's Notice of Motion dated 7/6/2023 seeking leave to appeal out of time against a judgment delivered on 8th March 2023 by Hon. Lesootia Saitabau in Mombasa CM ELR Case No. 1089 of 2019, in which the Respondent was awarded compensation of Ksh. 111,800, and a stay of execution pending the intended appeal. The Applicant explained that after submissions were confirmed on 18/11/2021, judgment was reserved and delivered without notice over one year and three months later; the Respondent's Advocate only furnished a copy of the judgment on 9/5/2023, by which time the Applicant's Advocates had lost contact with him. The Respondent opposed the application, arguing it was misleading, that no sufficient cause or substantial loss had been demonstrated, and that any stay should be conditional on security. Applying Section 79G of the Civil Procedure Act and Rule 8 of the ELRC (Procedure) Rules 2016, and the factors in First American Bank of Kenya Ltd v Gulab P. Shah, the court found the delay satisfactorily explained and uncontroverted, and held the intended appeal - which raised whether an employment relationship existed at all - was not frivolous. Relying on Butt v Rent Restriction Tribunal, the court allowed the motion: leave to appeal out of time was granted, the memorandum and record of appeal to be filed and served within thirty days, and a stay of execution issued conditional on the Appellant depositing Ksh. 111,800 (judgment sum) plus Ksh. 50,000 security for costs in the lower court within thirty days. Costs of the application were awarded to the Respondent.

Key legal issues

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01

Sufficient cause for delay in filing the appeal out of time

Holding

The court was satisfied that the delay was adequately explained, as the judgment was delivered over a year after submissions without notice, and the explanation was uncontroverted

Reasoning

The facts deponed in the supporting affidavit explaining the delay were neither denied nor controverted. Delivery of the trial court's judgment was delayed for over one year and three months and was finally delivered without notice to the Applicant or Counsel, who learned of it months later through the Respondent's Advocate. This constituted good and sufficient cause under the proviso to Section 79G.

p. 4
02

Merits of the intended appeal and entitlement to stay of execution

Holding

The intended appeal was not frivolous, and because the decree is a money decree, the Respondent's rights could be secured by conditions and security; a conditional stay was deserved

Reasoning

The court considered the applicant's proposed grounds of appeal, including that the respondent was not his employee and that termination was not proved, and found them not frivolous. Since the decree is monetary, the Respondent's interests could be protected by ordering deposit of the judgment sum plus security for costs, satisfying the principle that a stay should prevent a successful appeal from being nugatory.

p. 4

Legal principles established

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  • Appeals to the ELRC, being a Court of equal status with the High Court, must be filed within thirty days of the decree or order appealed against
  • In deciding whether to extend time, the court considers the explanation for the delay, the merits of the contemplated appeal, and whether the respondent can be compensated in costs
  • A stay of execution should be granted where necessary so that a successful appeal is not rendered nugatory

Court orders

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  1. 1.Leave granted to the Applicant to appeal out of time against the lower Court's judgment delivered on 8/3/2023 in Mombasa CM ELR Case No. 1089 of 2019
  2. 2.A memorandum of appeal and a complete record of appeal to be filed and served within thirty (30) days from the date of the Ruling
  3. 3.Stay of execution of the lower Court's decree pending hearing and determination of the intended appeal on condition that the Appellant deposits Ksh. 111,800 plus Ksh. 50,000 being security for costs (total Ksh. 161,800) in the lower Court suit within thirty days of the Ruling
  4. 4.Costs of the application awarded to the Respondent, to be agreed upon or taxed as by law provided

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A, 79G
  • Civil Procedure RulesOrder 42(6), Order 51(1)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 8(1) & (2)
  • Constitution of Kenya 2010Article 159; Article 162(2)(a)

Cases cited (6)

  • P.N. Mashru Limited -vs- Anthony Wachira Kahiga
    [2023] eKLR
  • Feroz Begum Quareshi & Another -vs- Maganbhai Patel & Others
    [1964] E.A 633
  • Dalphine Parry -vs- Murray Alexander Carson
    [1963] E.A. 633
  • First American Bank Of Kenya Ltd -vs- Gulab P. Shah & 2 Others
    [2002] 1EA 65
  • Butt -vs- Rent Restriction Tribunal
    [1979] eKLR
  • Wilson -vs- Church (No. 2)
    12 Ch D (1870) 454
On appeal from
Chief Magistrate's Court at Mombasa (ELR)
Mombasa CM ELR Case No. 1089 of 2019
Jurisdiction invoked
Sections 1A, 3A and 79G of the Civil Procedure Act; Order 42(6) and Order 51(1) of the Civil Procedure Rules; Article 159 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, "Biyondi v Aura (Miscellaneous Case E025 of 2023) [2023] KEELRC 3239 (KLR)", Case Analysis (2023). Miscellaneous Case E025 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3239/eng@2023-12-07

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