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ELRCAllowedNakuru ELRC Miscellaneous Application (Notice of Motion dated 1st November 2023) arising from Nakuru CMELRC Case No. 102 of 2022· [2024] KEELRC 311 (KLR)

Devyani Food Industries Limited v Kanga (Miscellaneous Application E074 of 2023) [2024] KEELRC 311 (KLR)

Employment and Labour Relations Court
22 February 2024
HWHellen Wasilwa
3,333 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court let a company appeal late and stopped the judgment being enforced, but only if it first deposits the full amount owed.

What this practically means

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Executive summary

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Before the Employment and Labour Relations Court at Nakuru was the applicant's notice of motion dated 1st November 2023, brought under sections 3A and 79G of the Civil Procedure Act and Orders 42, 50 and 51 of the Civil Procedure Rules, seeking leave to file an appeal out of time against the judgment of Hon. Lina Akoth delivered on 20th July 2023 in Nakuru CMELRC Case No. 102 of 2022, together with a stay of execution of that judgment and decree pending the intended appeal. The applicant, Devyani Food Industries Kenya Limited, explained the delay by claiming it received a copy of the judgment only on 12th October 2023, and asserted that its intended appeal was arguable, particularly on the finding that the claimant was unfairly terminated while on maternity leave. It also objected that the respondent's advocate had improperly sworn the replying affidavit. The respondent, Nancy Awuor Kanga, opposed the application as an afterthought, noting that judgment had been delivered in counsel's presence with a 30-day stay granted, that the delay was inordinate, and that the applicant had not demonstrated substantial loss or offered security. The court observed that since the applicant's counsel was present at delivery of the judgment, ignorance of its contents could not arise, and that a party does not need a physical copy of the judgment to file a Notice of Appeal. Nevertheless, applying the principle that a person should not be condemned unheard and invoking access to justice, the court allowed the application and granted both leave to appeal out of time and a stay of execution, on condition that the entire decretal sum be deposited in an interest-earning account in the joint names of counsel on record within 60 days, failing which execution to proceed. Costs of the application were made costs in the appeal. The court did not rule on the propriety of the advocate's affidavit.

Key legal issues

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01

Extension of time to appeal under section 79G of the Civil Procedure Act

Holding

The court granted leave to file the appeal out of time despite a delay of about two months, invoking the right to be heard and access to justice, conditioned on the deposit of the decretal sum.

Reasoning

The court found that the applicant's counsel was present when judgment was delivered, so the claim of not knowing the judgment's contents could not arise and a physical copy was not needed to lodge a Notice of Appeal. However, applying the principle that a party should not be condemned unheard, the court held that disallowing the application would hamper the applicant's right of access to justice, and allowed the application so the appeal could be determined on its merits.

p. 6
02

Stay of execution pending appeal under Order 42 rule 6

Holding

Stay of execution was granted on the condition that the entire decretal sum be deposited in an interest-earning account in the joint names of counsel within 60 days, failing which execution to proceed.

Reasoning

The respondent had argued the applicant failed to demonstrate substantial loss, made the application after unreasonable delay and offered no security. The court nonetheless granted stay but secured the respondent's position by conditioning it on a full deposit of the decretal sum in a joint interest-earning account, with default permitting execution to proceed, thereby balancing the rival interests of the parties.

p. 6

Legal principles established

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    Court orders

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    1. 1.Leave granted to the applicant to file its appeal out of time
    2. 2.Stay of execution of the judgment and decree in Nakuru CMELRC No. 102 of 2022 granted pending determination of the appeal
    3. 3.The entire decretal sum to be deposited in an interest-earning account held in the joint names of counsel on record within 60 days
    4. 4.In default of the deposit, execution to proceed
    5. 5.Costs of the application to be in the appeal
    On appeal from
    Chief Magistrate's Court (Employment and Labour Relations), Nakuru
    Nakuru CMELRC Case No. 102 of 2022
    Jurisdiction invoked
    Sections 3A and 79G of the Civil Procedure Act; Orders 42 rule 6, 50 rule 6 and 51 rule 1 of the Civil Procedure Rules

    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, "Devyani Food Industries Limited v Kanga (Miscellaneous Application E074 of 2023) [2024] KEELRC 311 (KLR)", Case Analysis (2024). Nakuru ELRC Miscellaneous Application (Notice of Motion dated 1st November 2023) arising from Nakuru CMELRC Case No. 102 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/311/eng@2024-02-22

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