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ELRCPartially AllowedMisc Application No E037 of 2023· [2024] KEELRC 650 (KLR)

Ken Knit Kenya Ltd v Ego & another (Miscellaneous Application E037 of 2023) [2024] KEELRC 650 (KLR)

Employment and Labour Relations Court (sitting at Eldoret, exercising appellate/first-instance jurisdiction over the subordinate court application)
14 March 2024
MOMaureen Onyango
1,804 words in judgment
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The bottom line

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A Kenyan court gave a company extra time to appeal a lost employment case, but only if it first deposited the awarded money in a joint account.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 14th August 2023 by Ken Knit Kenya Ltd, the appellant/judgment debtor in Eldoret CM ELRC No. E121 of 2021, in which the respondents had obtained judgment for unfair termination compensation on 19th May 2023 (Kshs 97,479 for the 1st Respondent and Kshs 143,420 for the 2nd Respondent, plus costs). The Applicant sought extension of time to file its appeal out of time and stay of execution, explaining that its advocates could not access the electronic court records and that the physical file was missing, being recovered only on 5th August 2023. The Respondents opposed, contending the application was incompetent for want of authority to swear the supporting affidavit, that no sufficient cause was shown under section 79G of the Civil Procedure Act, and that the draft appeal was not arguable. Maureen Onyango J identified the sole issue as whether sufficient cause existed to enlarge time. Applying the Leo Sila Mutiso principles (length of delay, reason, arguability and prejudice), the court found the explanation for the delay good and reasonable, the application brought without undue delay and the proposed appeal arguable, and allowed prayer (e) under section 3A. On stay, the court distinguished the Respondents' authorities on stay of costs, noting the application sought stay of the judgment and decree by the judgment debtor, and granted stay conditional on the decretal sum being deposited into a joint interest-earning account within 30 days. Costs of the application were awarded to the Respondents, payable by the Applicant in any event. Judgment dated and delivered virtually on 14th March 2024.

Key legal issues

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01

Whether sufficient cause was shown to extend time under section 79G of the Civil Procedure Act

Holding

The Applicant gave a good and reasonable explanation for the delay, acted without undue delay, and the draft memorandum of appeal showed an arguable appeal.

Reasoning

The delay was attributed to the missing court file, which was only recovered on 5th August 2023. Counsel's letter of 27th July 2023 requesting the judgment corroborated this. Applying the Leo Sila Mutiso principles — length and reason for delay, arguability and prejudice — the court found the explanation reasonable, the application timely and the appeal arguable, and exercised its discretion under section 3A to enlarge time.

p. 3
02

Whether stay of execution pending appeal should issue under Order 42 rule 6(2)

Holding

Stay of execution was granted on condition that the decretal sum be deposited into a joint interest-earning account within 30 days.

Reasoning

Having already extended time, the court found no reason to deny stay, noting the Applicant had offered to abide by any conditions. The Respondents' authorities on stay of costs were held inapplicable because the present application, made by the judgment debtor, sought stay of the judgment and decree, not of costs alone.

p. 4

Legal principles established

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  • In deciding whether to extend time for appealing, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent.
  • Execution being in motion or likely does not by itself amount to substantial loss under Order 42 rule 6; the applicant must show other factors establishing irreparable effect on the core of its case.

Court orders

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  1. 1.Notice of motion dated 14th August 2023 allowed in terms of Prayer (e): time enlarged for the Appellant/Applicant to file its appeal out of time and the Notice of Appeal admitted
  2. 2.Stay of execution of the judgment and decree in Eldoret CM ELRC No. E121 of 2021 granted, conditional upon the decretal sum being deposited into a joint interest-earning account in the names of counsel for the parties within 30 days
  3. 3.Costs of the application to be paid by the Applicant in any event

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 42 rule 6(2)
  • Advocates ActSection 51(2)

Cases cited (4)

  • Leo Sila Mutiso v Helen Wangari Mwangi
    [1999] 2 EA p231
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • S. Gachukia Waigwa v Nina Marie Ltd
  • Frances Kabaa v Nancy Wambui and Jane Wanjiru
On appeal from
Eldoret Magistrate's Court (CM ELRC)
E121 of 2021
Jurisdiction invoked
Section 79G and Section 3A of the Civil Procedure Act; Order 42 rule 6(2) 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, "Ken Knit Kenya Ltd v Ego & another (Miscellaneous Application E037 of 2023) [2024] KEELRC 650 (KLR)", Case Analysis (2024). Misc Application No E037 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/650/eng@2024-03-14

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