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ELRCDismissedCause No 851 of 2019· [2024] KEELRC 186 (KLR)

Nyangena v Hi-Tech Inks and Coating Limited (Cause 851 of 2019) [2024] KEELRC 186 (KLR)

Employment and Labour Relations Court
9 February 2024
OKOcharo Kebira
2,929 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 Respondent/Applicant, a company that lost an employment cause (Cause No. 851 of 2019, judgment delivered on 9th February 2023 by Ocharo Kebira, J), moved the Employment and Labour Relations Court by Notice of Motion dated 29th June 2023 seeking leave to lodge a Notice of Appeal out of time and a stay of execution, including of the proclaimed Motor Vehicle KCU 817Y. The application was triggered by a proclamation by Chador Auctioneers on 29th June 2023 in execution of a decree of Kshs. 1,246,944/-. The Applicant claimed it never received notice of the judgment date and that its Financial Controller, Vipin Parihar, had withdrawn instructions from its advocates without board authority. The Claimant/Respondent countered that the applicant's advocates remained on record, were served with all process including the judgment notice of 13th October 2022 by email, and that the application was filed after inordinate, unexplained delay. The court framed two issues: leave to appeal out of time and stay of execution. Applying the Supreme Court's principles in the Salat case, the judge found that service on counsel was proved, that counsel remained on record until a notice of change was filed, that the alleged handover letter concerned a different file, and that the delay was unexplained and the applicant not candid. The application was dismissed with each party bearing its own costs; the stay issue was not reached.

Key legal issues

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01

Whether leave should be granted to file a notice of appeal out of time under Section 7 of the Appellate Jurisdiction Act

Holding

Leave refused; the delay of about five months was not sufficiently explained because counsel was duly served with the judgment notice and the alleged withdrawal of instructions by the Financial Controller was disbelieved

Reasoning

Applying the Salat principles, the court examined the reason for the delay. The judgment notice dated 13th October 2022 was served by email on the applicant's advocates, who remained on record throughout. The letter of 28th February 2022 allegedly evidencing handover of the file related to a different file (No. E 490 of 2021), and the emails were copied to Mr. Vipul Vyas, the deponent of the affidavits, undermining the claim that the Board was unaware. The ground of lack of candour weighed against the applicant.

p. 6
02

Whether the applicant could ask the trial judge to assess the arguability of the intended appeal

Holding

No; that exercise belongs to the Court of Appeal under Rule 5 of the Court of Appeal Rules, and the trial judge declined to evaluate the merits of his own judgment

Reasoning

The court held that the effort spent demonstrating that the intended appeal had a high chance of success was misplaced, as such assessment is for the appellate court, not the judge whose judgment is under attack.

p. 4
03

Whether stay of execution pending appeal should issue

Holding

Not determined; the application failed on the extension-of-time issue, rendering consideration of stay unnecessary

Reasoning

Having found the delay unexplained, the court found no necessity to proceed to the second issue and dismissed the application outright.

p. 6

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the discretion of the court, and the applicant bears the burden of explaining the delay
  • An advocate remains on record until a notice of intention to act in person or a notice of change of advocates is filed, and service on such counsel is valid service on the client

Court orders

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  1. 1.The Notice of Motion dated 29th June 2023 is dismissed
  2. 2.Each party shall bear its own costs of the application

Authorities

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Legislation

  • Employment and Labour Relations ActSections 3, 12
  • Constitution of Kenya, 2010Articles 25, 48, 50(1), 159(2)(d)
  • Civil Procedure Act, Cap 21Section 94; Section 1B
  • Appellate Jurisdiction Act, Cap 9Section 7
  • Court of Appeal Rules, 2010Rules 5, 75(1) and (2)
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (1)

  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & Others
    [2014] eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act, Cap 9 (power to extend time); Sections 3 and 12 of the Employment and Labour Relations Act; Articles 48 and 159(2)(d) 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, "Nyangena v Hi-Tech Inks and Coating Limited (Cause 851 of 2019) [2024] KEELRC 186 (KLR)", Case Analysis (2024). Cause No 851 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/186/eng@2024-02-09

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