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ELRCAllowedNotice of Motion dated 27th February 2024 (ELRC, Nairobi)· [2025] KEELRC 26 (KLR)

Singh v Awa (Employment and Labour Relations Appeal E041 of 2024) [2025] KEELRC 26 (KLR)

Employment and Labour Relations Court
14 January 2025
JKJemimah Keli
3,081 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 (defendant in the underlying employment dispute) moved the Employment and Labour Relations Court by Notice of Motion dated 27th February 2024 seeking extension of time to appeal against the judgment of Hon. H.M Nyaga, Chief Magistrate, delivered on 2nd December 2022, which dismissed the Claimant's claim but awarded an unprayed-for sum of Kshs. 40,128/- for underpayment. The Applicant contended the trial court applied the wrong minimum wage figure; a review application was declined. An appeal filed in the High Court civil division (HCCOMMA 622 of 2023) was struck out on 30th January 2024 for lack of jurisdiction, after a stay was granted, the decretal sum deposited in court, and failed mediation. The Respondent opposed, citing abuse of process, a pending transfer application, a 16-year delay, and failure to demonstrate an arguable appeal. The court framed two issues: extension of time and stay of execution. Applying the Supreme Court's principles in Fahim Yasin Twaha v Timamy Issa Abdalla (upholding Salat v IEBC), it found the delay explained by counsel's inadvertent filing in the wrong court and the appeal arguable, and extended time, deeming the memorandum of appeal filed. On stay, since the ELRC Rules 2024 are silent on conditions, the court applied Order 42 Rule 6(2) of the Civil Procedure Rules and, guided by Butt v Rent Restriction Tribunal, granted a stay conditional on the decretal sum being deposited in a joint interest-earning account within 30 days. Costs were awarded to the respondent in the cause. The record of appeal was to be filed within 30 days, with mention on 17th February 2025.

Key legal issues

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01

Whether extension of time to file the appeal should be granted

Holding

Extension granted; the delay was explained and the appeal raised triable issues.

Reasoning

The court applied the Supreme Court's principles in Fahim Yasin Twaha v Timamy Issa Abdalla, upholding Salat v IEBC. It found the delay caused by counsel's inadvertent filing in the High Court civil division, which was struck out for lack of jurisdiction. The appeal raised triable issues on the underpayment award, no undue delay was shown, and any prejudice could be compensated by costs.

p. 5
02

Whether to grant a stay of execution pending appeal

Holding

Stay granted conditional on deposit of the decretal sum in a joint interest-earning account.

Reasoning

Since the ELRC Rules 2024 are silent on conditions for stay pending appeal, the court filled the lacuna with Order 42 Rule 6(2) of the Civil Procedure Rules, requiring substantial loss, no unreasonable delay, and security. The court, guided by Butt v Rent Restriction Tribunal, found an arguable appeal and justified delay, so that the appeal would not be rendered nugatory if successful.

p. 6

Legal principles established

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  • Extension of time is an equitable remedy, not a right, and the applicant bears the burden of laying a basis to the satisfaction of the court.
  • Written submissions are not pleadings and cannot bind a litigant.

Court orders

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  1. 1.The applicant is granted extension of time to file the appeal out of time and the memorandum of appeal dated 27th February 2024 is deemed as duly filed
  2. 2.Order of stay of execution of the judgment of the Trial Magistrate Court, Hon H.M Nyaga (CM), delivered on the 2nd December 2022 on condition that the entire decretal sum is deposited in a joint interest earning account within 30 days to be opened in the names of the advocates for the parties and in default execution may proceed
  3. 3.Costs of the application to the respondent in the cause
  4. 4.The applicant to file the record of appeal within 30 days
  5. 5.Mention on the 17th February 2025 to confirm compliance and for further directions

Authorities

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Legislation

  • The Employment and Labour Relations Court ActSection 12
  • The Employment and Labour Relations Court (Procedure) RulesRule 8 (2021 Rules); Rules 12 and 18 and 21 (2024 Rules)
  • Civil Procedure Act, 2010Sections 1A, 1B, 3A, 79G
  • Civil Procedure Rules, 2010Order 51 Rule 1; Order 42 Rule 6(2)
  • Regulation of Wages OrderLegal Notice No. 38 (2006)

Cases cited (5)

  • Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others
    [2015] eKLR
  • Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] KESC 12 (KLR)
  • Kenya Shell Ltd v Kibiru & another
    (1986) eKLR
  • Wilson v Church (No 2)
    (1879) 12 Ch D 454
  • Butt vs Rent Restriction Tribunal
    (1982) KLR 417
On appeal from
Chief Magistrate's Court, Milimani Commercial Courts
Judgment of Hon. H.M Nyaga, Chief Magistrate, delivered 2nd December 2022
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; Rules 12 and 18 of the Employment and Labour Relations Court (Procedure) Rules, 2024

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, "Singh v Awa (Employment and Labour Relations Appeal E041 of 2024) [2025] KEELRC 26 (KLR)", Case Analysis (2025). Notice of Motion dated 27th February 2024 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/26/eng@2025-01-14

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