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ELRCAllowedNot stated on the face of the extract (arising from Milimani Commercial Magistrates Court CMEL Cause No. E229 of 2019)· [2024] KEELRC 2340 (KLR)

Brinks Security Services Limited v Mudaki & another (Miscellaneous Case E131 of 2024) [2024] KEELRC 2340 (KLR)

Employment and Labour Relations Court
30 September 2024
3,334 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 Nairobi employment court gave Brinks Security more time to appeal and paused the enforcement of the judgment, but only if the company deposits the full award in a joint bank account within 45 days.

What this practically means

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Executive summary

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This ruling determines a Notice of Motion dated 20th April 2024 by Brinks Security Services Ltd, the unsuccessful party before the Senior Principal Magistrate (Hon. Paul K. Rotich) in Milimani CMEL Cause No. E229 of 2019, in which judgment was delivered against it on 23rd January 2024 in favour of Patrick Mudaki and Elijah Nderitu. The applicant sought leave to appeal out of time and a stay of execution, arguing that its former counsel could not obtain certified copies of the judgment and proceedings within 30 days, and that a decree issued on 18th April 2024 rendered execution imminent. The respondents opposed, contending the application was an abuse of process, that a memorandum of appeal could have been filed without the certified copies, that no substantial loss or security had been demonstrated. The Court, applying the Salat and Njoroge Kimani tests for extension of time, held that the applicant, having requested and paid for certified copies on 7th February 2024, was not blameworthy for the delay, and that a memorandum of appeal cannot sensibly be drafted without the judgment. The grounds contesting limitation, the awards and costs were held arguable. On stay, the Court applied Order 42 Rule 6(2), finding the three-month delay not inordinate and the risk of attachment demonstrable, but noted the applicant had not offered security; it therefore imposed its own conditions. The Court allowed both prayers, granting a conditional stay requiring deposit of the entire decretal sum in a joint interest-earning account within 45 days and filing of the appeal within 60 days, failing which the stay lapses automatically. Costs abide the appeal.

Key legal issues

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01

Extension of time to file an appeal out of time

Holding

The delay was excusable because the applicant had promptly requested and paid for certified copies of the judgment and proceedings which were not availed, and the intended grounds of appeal were arguable

Reasoning

The Court adopted the test of good and substantial reason plus arguability. The applicant formally requested and paid for certified copies on 7th February 2024; the respondent did not suggest the judgment or typed proceedings were available. A memorandum of appeal cannot be drafted without the judgment. The grounds contesting liability, limitation, awards of salary in lieu of notice, costs and interest were held arguable, so the discretion was exercised in favour of extension.

p. 4
02

Stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The Court granted a conditional stay, weighing substantial loss, absence of unreasonable delay, and security, balancing the applicant's appeal rights against the respondent's enjoyment of the judgment

Reasoning

The applicant faced imminent attachment after a decree issued on 18th April 2024; the three-month delay in filing the application was not inordinate. Although the applicant had not offered security, the Court held it has jurisdiction to impose appropriate conditions and ordered deposit of the decretal sum in a joint interest-earning account, with filing of the appeal within 60 days, failing which the stay lapses automatically.

p. 7

Legal principles established

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  • An applicant for extension of time must show good and substantial reason for the delay and prima facie good cause why the intended appeal should be heard
  • A memorandum of appeal cannot be drafted without the judgment sought to be appealed against, so delay caused by non-availment of the judgment is excusable
  • An offer to provide security by an applicant for stay signifies good faith, being the price paid for the stay

Court orders

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  1. 1.Leave granted to the Applicant to file an appeal out of time against the judgment in Milimani CMEL Cause No. E229 of 2019 delivered on 23rd January 2024
  2. 2.Stay of execution of the decree/judgment in Nairobi CMEL Cause No. 229 of 2019 granted on conditions that within 45 days the applicant deposits the entire decretal amount in an interest-earning account in a reputable commercial bank in the joint names of counsel for the parties
  3. 3.The applicant shall within 60 days file the intended appeal and take steps to have it placed before the Court for further directions on disposal
  4. 4.In the event of failure to comply with the conditions, the stay orders shall automatically lapse and the respondents shall be at liberty to proceed with execution
  5. 5.Costs of the application shall abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 40
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (18)

  • Macharia & others V Malewa Farmers Co-operative Society Ltd & 2 others
    (2024) KECA 59 (KLR)
  • Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 7 others
    (2014) eKLR
  • Sokoro Savings and Credit Co-operative Society Ltd V Mwamburi
    (2023) KECA 381 (KLR)
  • James Wangalwa & another V Agnes Naliaka Cheseto
    (2012) eKLR
  • Gianfranco Manenthi & another V Africa Merchant Assurance Company Ltd
    (2019) eKLR
  • University of Nairobi V Mary M. Cornelius
    (2021) eKLR
  • University of Nairobi V Patrick Mwangi Njunjiri
    (2022) eKLR
  • Njoroge Kimani
    Civil Application Nairobi E049 of 2022 (2022) KECA 1188 (KLR)
  • M/S Portreitz Maternity V James Karanga Kobia
    Civil Appeal No. 63 of 1997
  • Del Monte Kenya Ltd V Patrick Njuguna Kariuki
    (2015) eKLR
  • National Union of Mineworkers V Council for Mineral Technology
    (1998) ZALAC 22
  • Muchungi Kiragu V James Muchungi Kiragu & another
    (1998) eKLR
  • Ngei V Kibe & another
    Civil Application E359 of 2021 (2021) KECA 243 (KLR)
  • RWW V EKW
    (2019) eKLR
  • Kenya Shell Ltd V Kibiru & another
    (1986) KLR 410
  • Antoine Ndiaye V Africa Virtual University
    (2015) eKLR
  • Century Oil Trading Company Ltd V Kenya Shell Ltd
    HCMA No. 1561 of 2007
  • Nyatera Nyakundi
    Civil Appeal E033 of 2022 (2023) KEHC 3086 (KLR)
On appeal from
Milimani Commercial Magistrates Court (Chief Magistrate, Employment and Labour Relations)
Cause No. E229 of 2019
Jurisdiction invoked
Civil Procedure Act and Order 40 and Order 42 of the Civil Procedure Rules (application for extension of time to appeal and stay of execution)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Brinks Security Services Limited v Mudaki & another (Miscellaneous Case E131 of 2024) [2024] KEELRC 2340 (KLR)", Case Analysis (2024). Not stated on the face of the extract (arising from Milimani Commercial Magistrates Court CMEL Cause No. E229 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2340/eng@2024-09-30

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