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ELRCPartially AllowedMombasa CMELRC E500 of 2021 (appeal from MCELRC Cause No. E500 of 2021)· [2024] KEELRC 1482 (KLR)

Pinkerton’s Kenya Limited v Chirima (Miscellaneous Application E138 of 2023) [2024] KEELRC 1482 (KLR)

Employment and Labour Relations Court
14 March 2024
MMM. MBARŨ
1,677 words in judgment
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The bottom line

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A Mombasa employment court allowed a late appeal because the delay was caused by court system delays, and stopped execution of the judgment meanwhile.

What this practically means

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Executive summary

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The applicant, against whom judgment was entered on 30 March 2023 in MCELRC Cause No. E500 of 2021 for Kshs. 1,011,768.63 plus costs and interest, applied for leave to file an appeal out of time and for a stay of execution pending the intended appeal. It argued it was unrepresented at the hearing, only later became aware of the suit, and had pursued a set-aside application dated 8 June 2023 which was never heard, being moved between judicial officers, causing the appeal period to lapse. It relied on James Wangalwa v Cheseto on stay principles and offered security, contending the respondent, earning Kshs. 18,000 monthly, could not refund the decretal sum if the appeal succeeded. The respondent opposed, asserting he was properly served and the applicant chose not to attend, that no sufficient reasons for the delay were given and no draft memorandum of appeal was attached, and relied on Uzuri Industries v Shilunji. The court applied the two-limb test from Nicholas Kiptoo Arap Korir Salat v IEBC: good and substantial reasons for delay plus arguable grounds, balanced against prejudice and access to justice for both sides (Portraits Maternity v Kabia). Finding the applicant's delay attributable to the judicial system rather than any fault of its own, the court held the explanation satisfactory and exercised its discretion to allow the application, granting leave to file and serve the intended appeal within 30 days and staying execution of the 30 March 2023 judgment. To accommodate the respondent, however, the applicant was ordered to pay him Kshs. 10,000 all-inclusive costs. Judgment delivered in open court at Mombasa on 14 March 2024 by M. Mbarũ, Judge.

Key legal issues

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01

Extension of time to file appeal out of time

Holding

The delay was excusable because the applicant diligently pursued an application to set aside the judgment which was not heard and was moved between judicial officers; the court granted leave to appeal within 30 days.

Reasoning

The court applied the two-limb test from Salat: satisfactory justification for the delay and arguable grounds of appeal, then discretionary balancing. The applicant moved the court on 8 June 2023 to set aside the judgment and the application was not heard, being moved from one judicial officer to another. The delay was thus attributable to the judicial system rather than the applicant, satisfying the justification limb and warranting the discretion to hear the intended appeal.

p. 3
02

Stay of execution pending intended appeal

Holding

Having found extension of time justified, the court also granted a stay of execution of the trial judgment.

Reasoning

The court treated the stay question as the twin issue to extension of time. Having found the extension justified, it held a stay of execution of the judgment in Mombasa CMELRC No. 500 of 2021 was likewise justified, without detailed separate analysis of substantial loss, but granting the stay to preserve the position pending the intended appeal.

p. 3

Legal principles established

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  • An applicant seeking extension of time must show good and substantial reasons for the delay and prima facie arguable grounds of appeal; the court then exercises its discretion balancing the interests of both parties.

Court orders

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  1. 1.Leave granted: the intended appeal be filed and served within 30 days from the date of the ruling
  2. 2.Order of stay of execution of the judgment delivered on 30 March 2023 in Mombasa CMELRC E500 of 2021 issued
  3. 3.Applicant to pay the respondent Kshs. 10,000 in costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 79G, 95
  • Civil Procedure RulesOrder 42 rules 6 and 7; Order 50 rule 1
  • Constitution of KenyaArticle 163(3)(e)

Cases cited (4)

  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Uzuri Industries Limited v Shilunji & another
    (Employment and Labour Relations Appeal E203 of 2022) [2023] KEELRC 799 (KLR) (27 March 2023) (Ruling)
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • M/S Portraits Maternity v James Karanga Kabia
    Civil Appeal No 63 of 1997
On appeal from
ELRC (Principal Magistrate's Court, Mombasa)
MCELRC Cause No. E500 of 2021
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 79G, 95 of the Civil Procedure Act; Order 42 rules 6 and 7 and Order 50 rule 1 of the Civil Procedure Rules; Article 163(3)(e) 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, "Pinkerton’s Kenya Limited v Chirima (Miscellaneous Application E138 of 2023) [2024] KEELRC 1482 (KLR)", Case Analysis (2024). Mombasa CMELRC E500 of 2021 (appeal from MCELRC Cause No. E500 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1482/eng@2024-03-14

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