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ELRCAllowedJudicial Review / Application arising from MC ELRC E1542 of 2019· [2025] KEELRC 19 (KLR)

Landmark Holdings Limited v Mutisya (Employment and Labour Relations Appeal E252 of 2024) [2025] KEELRC 19 (KLR)

Employment and Labour Relations Court
14 January 2025
2,137 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court gave a late appellant extra time to appeal but only stopped judgment enforcement after ordering the full decretal amount deposited first.

What this practically means

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Executive summary

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This was a ruling by the Employment and Labour Relations Court at Nairobi (Jemimah Keli, J) on a Notice of Motion dated 30th August 2024 by the applicant, aggrieved by the judgment and decree of Hon. A.N. Ogonda (PM) in MC ELRC E1542 of 2019 (Alex Kiio Mutisya v Landmark Holdings Limited) delivered on 26th July 2024, awarding a decretal amount of Kshs.835,380 plus interest and costs. The applicant sought extension of time to file an appeal out of time, validation of a memorandum of appeal dated 28th August 2024, and stay of execution of the judgment and decree. The application was unopposed, though both parties filed written submissions. The court framed two issues: extension of time and stay of execution. Applying Rule 12(2) and Rule 18 of the ELRC (Procedure) Rules 2024 and the principles in Fahim Yasin Twaha v Timamy Issa Abdalla, the court found no inordinate delay, a satisfactory basis for the delay, and arguable issues, and granted extension of time, deeming the memorandum of appeal duly filed. On stay, the court held that since the ELRC Rules are silent on conditions, Order 42 Rule 6(2) of the Civil Procedure Rules and the Butt v Rent Restriction Tribunal principles apply: substantial loss, no unreasonable delay, and security. Finding no inordinate delay and focused on ensuring the appeal was not rendered nugatory, the court granted stay conditionally on the decretal amount of Kshs.835,380 being deposited into an interest-earning joint account of the parties' advocates within 30 days, in default of which execution may proceed. Costs of the application were awarded to the Respondent, and mention was set for 17th February 2025 for compliance and directions.

Key legal issues

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01

Whether to grant extension of time to file the appeal

Holding

Extension of time granted; the court found no inordinate delay, a satisfactory basis for the delay, and an arguable memorandum of appeal, and deemed the memorandum of appeal dated 28th August 2024 as duly filed.

Reasoning

Rule 12(2) of the ELRC (Procedure) Rules 2024 required the appeal to be filed within thirty days of the judgment delivered on 26th July 2024. The application dated 30th August 2024 and the memorandum dated 28th August 2024 were filed outside that period. Applying the Fahim Yasin Twaha principles, the court found the delay short, the reason (failure to issue notice of judgment delivery) satisfactory, no prejudice to the respondent, and arguable issues raised.

p. 4
02

Whether to grant stay of execution of the judgment and decree pending appeal

Holding

Stay granted conditionally upon the applicant depositing the decretal amount of Kshs.835,380 in an interest-earning joint account in the names of the parties' advocates within 30 days, failing which execution may proceed.

Reasoning

Since the ELRC (Procedure) Rules 2024 are silent on the conditions for stay, the court applied Order 42 Rule 6(2) of the Civil Procedure Rules and the Butt v Rent Restriction Tribunal principles: substantial loss, no unreasonable delay, and security for due performance. The court found no inordinate delay and focused on ensuring the appeal was not rendered nugatory, but noted the applicant had been silent on security, which the court considered a key condition.

p. 5

Legal principles established

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  • Extension of time is an equitable remedy available to a deserving party at the discretion of the court, and the applicant must explain the delay and lay a basis for the extension.
  • Where the ELRC (Procedure) Rules 2024 are silent on the conditions for granting stay of execution pending appeal, the conditions in Order 42 Rule 6(2) of the Civil Procedure Rules apply, including security for due performance of the decree.

Court orders

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  1. 1.Leave granted to the Applicant to file appeal out of time; time enlarged accordingly
  2. 2.Memorandum of Appeal dated 28th August 2024 deemed duly filed
  3. 3.Stay of execution of the judgment and decree in MC ELRC E1542 of 2019 pending the hearing and determination of the appeal, conditional on the decretal amount of Kshs.835,380 being deposited in an interest-earning joint account in the names of the parties' advocates within 30 days, in default of which execution may proceed
  4. 4.Costs of the application to the Respondent
  5. 5.Mention on 17th February 2025 to confirm compliance and issue further directions in the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 79G
  • Civil Procedure RulesOrder 42 Rule 6(2); Order 51
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rules 12(1), 12(2), 18, 21(1), 21(2)

Cases cited (3)

  • Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others
    [2015] eKLR
  • Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] KESC 12 (KLR)
  • Butt -vs Rent Restriction Tribunal
    (1982) KLR 417
On appeal from
Chief Magistrate's Court, Nairobi
MC ELRC E1542 of 2019
Jurisdiction invoked
Sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Order 42 and Order 51 of the Civil Procedure Rules; Rules 12, 18 and 21 of the ELRC (Procedure) Rules 2024

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, "Landmark Holdings Limited v Mutisya (Employment and Labour Relations Appeal E252 of 2024) [2025] KEELRC 19 (KLR)", Case Analysis (2025). Judicial Review / Application arising from MC ELRC E1542 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/19/eng@2025-01-14

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