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ELRCPartially AllowedNot stated in the judgment (arising from MCELRC Cause No. E500 of 2021)· [2024] KEELRC 1575 (KLR)

Pinkerton’s Kenya Limited v Chirima (Miscellaneous Application E138 of 2023) [2024] KEELRC 1575 (KLR)

Employment and Labour Relations Court
20 June 2024
MMM. Mbarũ
1,684 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 applicant, the judgment debtor in MCELRC Cause No. E500 of 2021 before Hon. D.O. Mbeja (PM) in Mombasa, applied on 13 December 2023 under Sections 79G and 95 of the Civil Procedure Act and Order 42 rules 6 and 7 of the Civil Procedure Rules for leave to file an appeal out of time against a judgment of 30 March 2023 awarding the respondent Kshs. 1,011,768.63 and costs, and for a stay of execution pending the intended appeal. The applicant, unrepresented at the trial hearing, said it learned of the suit late, filed an application dated 8 June 2023 to set aside the judgment, but that application was moved from one judicial officer to another and never heard, during which time the appeal period lapsed. The respondent opposed, asserting proper service, absence of any draft memorandum of appeal, and abuse of process. The court, citing Nicholas Kiptoo Arap Korir Salat v IEBC and Portreitz Maternity v James Karanga Kabia, held that extension of time requires satisfactory explanation of the delay and arguable grounds, balanced against prejudice to the respondent. Finding the applicant delayed through the judicial system itself, the court held the delay excusable and allowed the application. It ordered the intended appeal filed and served within 30 days, granted stay of execution of the 30 March 2023 judgment, and, to accommodate the respondent, awarded the respondent costs of the application assessed at Kshs. 10,000 all-inclusive.

Key legal issues

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01

Whether the applicant demonstrated sufficient reasons for the delay in filing the intended appeal out of time

Holding

The delay was excusable because the applicant's earlier application dated 8 June 2023 was moved from one judicial officer to another and never heard, through no fault of the applicant.

Reasoning

The applicant filed an application dated 8 June 2023 to set aside the judgment and reinstate the suit. That application was not heard and was moved from one judicial officer to the next, during which time the appeal period lapsed. The court found this a satisfactory explanation evidencing efforts to seek and secure justice and the right to be heard, justifying extension of time.

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02

Whether a stay of execution of the judgment of 30 March 2023 should issue pending the intended appeal

Holding

Stay of execution was justified once extension of time was found justified.

Reasoning

The court treated the extension of time and stay as intertwined. Having found the extension justified, it held that stay of execution of the judgment in Mombasa CMELRC No. 500 of 2021 pending the intended appeal was likewise justified. Substantial loss was asserted on the basis that the respondent earned Kshs. 18,000 monthly and could not refund the decretal sum of over one million shillings if the appeal succeeded.

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.
  • Extension of time is not a right; the applicant must demonstrate specific circumstances for the lapse and absence of prejudice to the respondent.
  • The court must balance the interests of both parties, ensuring access to justice for each.

Court orders

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  1. 1.Leave granted: the intended appeal to be filed and served within 30 days from the date of the ruling
  2. 2.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 (assessed all-inclusive)

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 Portreitz Maternity v James Karanga Kabia
    Civil Appeal No 63 of 1997
On appeal from
Employment and Labour Relations Court (Mombasa, trial court before Hon. D.O. Mbeja, PM)
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 1575 (KLR)", Case Analysis (2024). Not stated in the judgment (arising from MCELRC Cause No. E500 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1575/eng@2024-06-20

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