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ELRCPartially AllowedNotice of Motion dated 23rd October 2023 (arising from MCELRC No. E051 of 2023)· [2024] KEELRC 1753 (KLR)

Peter Mathenge t/a Imperial Water Services v Juma (Employment and Labour Relations Appeal E210 of 2023) [2024] KEELRC 1753 (KLR)

High Court of Kenya
28 June 2024
OKOcharo Kebira
3,839 words in judgment
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The bottom line

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Kenya's High Court allowed a late employment appeal but refused to validate the improperly filed one, granting stay of execution only if the judgment sum is deposited.

What this practically means

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Executive summary

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The Applicant, Peter Mathenge T/A Imperial Water Services, moved the Court by Notice of Motion dated 23rd October 2023 seeking extension of time to lodge a memorandum of appeal against the judgment of Hon. B.M. Cheloti (Chief Magistrate) delivered on 8th September 2023 in MCELRC No. E051 of 2023 – James Maloba Juma v Peter Mathenge T/A Imperial Water Services, in which Kshs. 895,383/- in terminal dues, costs and interest was awarded to the Respondent, plus a stay of execution pending the intended appeal. The Respondent opposed, contending that parties had access to the e-filing CTS portal where judgment delivery was noted, that the trial court had granted 30 days' stay suo moto, and that the decree had not been signed; he conditioned any stay on deposit of the decretal sum. The Court framed two issues: extension of time and stay of execution. Applying Section 79G of the Civil Procedure Act and the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC, the Court held the one-and-a-half-month delay short and satisfactorily explained, since the Applicant received no notice of the judgment delivery date and the Respondent only forwarded the judgment on 16th October 2023. Following Salat, the Court declined to deem the already-filed memorandum of appeal lodged within time, holding it a nullity. On stay, applying Order 42 Rule 6(2) and Timsales, the Court held mere execution is not substantial loss but granted a conditional stay, the Respondent consenting to security. The application was allowed: leave to file and serve the appeal within 21 days; stay conditioned on depositing Kshs. 895,383/- in a joint interest-earning account within 45 days; Record of Appeal within 45 days; default entails immediate execution.

Key legal issues

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01

Whether leave should be granted to file the appeal out of time

Holding

Leave granted. The delay of one and a half months was short and satisfactorily explained: the Applicant had no notice of the judgment delivery date, and neither the Respondent nor the Court served notification of it, a fact that stood unrebutted. No prejudice would befall the Respondent and the application was brought without undue delay.

Reasoning

Applying the Salat principles, the court found the explanation for delay credible since service of notice of judgment delivery was the Claimant's responsibility and the e-filing portal did not substitute for service. The Respondent only forwarded the judgment and draft decree on 16th October 2023, over a month after delivery, corroborating that the Applicant was unaware of the judgment within the statutory period.

p. 5
02

Whether the already-filed Memorandum of Appeal could be deemed lodged within time

Holding

Refused. Following Salat, the memorandum filed without leave was a nullity; the appeal must be filed afresh in an appeal file pursuant to the leave granted.

Reasoning

The court adopted the Supreme Court's holding that filing an appeal out of time and then seeking extension is presumptive and inappropriate, rendering the document a nullity of no legal consequence. The proper course is to seek extension first, annexing a draft appeal, not to file and seek to legalize the filing.

p. 6
03

Whether stay of execution pending appeal should be granted

Holding

Stay granted on conditions. Although mere likelihood of execution is not substantial loss, the application was made without unreasonable delay and the Respondent consented to stay conditioned on the decretal sum being deposited as security.

Reasoning

Under Order 42 Rule 6(2), the court weighed substantial loss, delay and security. Following Timsales and Nguti, execution alone is not substantial loss and a successful party should enjoy the fruits of judgment. However, with the Applicant willing to deposit security and the Respondent consenting to stay on that condition, the court found the twin conditions satisfied and granted a conditional stay.

p. 7

Legal principles established

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  • Service of court documents is a critical part of the court process and access to an e-filing portal does not excuse a party's obligation to serve notices of judgment delivery.
  • An appeal filed out of time without leave is a nullity; a party must first obtain extension of time before filing.
  • The mere commencement or likelihood of execution does not by itself constitute substantial loss for stay of execution purposes.

Court orders

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  1. 1.Leave granted to the Applicant to file and serve an appeal against the judgment in the Chief Magistrate Court Milimani Commercial Court MCELRC E051/2023 within 21 days
  2. 2.Stay of execution of the decree pending the hearing and determination of the intended appeal, subject to the Applicant depositing the judgment sum of Kshs. 895,383/- in a joint interest earning account in the names of Counsels for the parties within 45 days
  3. 3.The Applicant to file a Record of Appeal within 45 days of the filing of the appeal
  4. 4.In case of default of any of the conditions in (a) and (b) above, execution to proceed forthwith

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 22 Rule 25
  • Civil Procedure Rules 2010Order 42 Rule 6 (1) and (2)
  • Civil Procedure Rules 2010Order 42 Rule 1
  • Civil Procedure Rules 2010Order 50 Rule 6
  • Civil Procedure ActSections 1A, 1B, 3A and 79G
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (7)

  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & Others
    [2014] eKLR
  • Kenya Ports Authority v Silas Obengele
    Civil Application No Nai 297 of 2004 [2006] 2 KLR 112
  • Timsales Limited v Hiram Gichohi Mwangi
    Civil Appeal Number 94 of 2008 (2013) eKLR
  • Thomas M. Nguti & 196 Others v Kenya Railways Corporation
    [2022] eKLR
  • Machira T/A Machira & Co Advocates v East African Standard No. 2
    [2002] eKLR 63
  • Michael Ntouthi Mitheu v Kivondo Musau
    [2021] eKLR
  • Nduhiu Gitahi v Warugongo
    [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100
On appeal from
Chief Magistrates Court (Milimani Commercial Court, Employment and Labour Relations)
MCELRC No. E051 of 2023 – James Maloba Juma v Peter Mathenge T/A Imperial Water Services
Jurisdiction invoked
Section 79G of the Civil Procedure Act 2010 and Order 50 Rule 6, Order 42 Rule 6 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Mathenge t/a Imperial Water Services v Juma (Employment and Labour Relations Appeal E210 of 2023) [2024] KEELRC 1753 (KLR)", Case Analysis (2024). Notice of Motion dated 23rd October 2023 (arising from MCELRC No. E051 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1753/eng@2024-06-28

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