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ELRCPartially AllowedNot stated in judgment (Appeal from Milimani MCELRC No. E1649 of 2022)· [2025] KEELRC 861 (KLR)

Baplix Company Limited v Baragu & another (Employment and Labour Relations Appeal E344 of 2024) [2025] KEELRC 861 (KLR)

Employment and Labour Relations Court
14 March 2025
5,338 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court forgave a one-day e-filing payment delay and protected a third party's goods from auction, but only partially.

What this practically means

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Executive summary

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The Appellant/Objector, through a Notice of Motion dated 5th November 2024, sought stay of execution of a Ruling delivered on 30th October 2024 in Milimani MCELRC No. E1649 of 2022 dismissing its objection proceedings, and leave for its appeal to be deemed filed within time. The appeal arose after the 1st Respondent/Decree Holder attached goods at premises along Muthithi Road, Westlands, branded 'M & G Stationery', and the Applicant's objection was dismissed. The Applicant contended it was not a party to the suit and did not exist when the claimed acts occurred, and would suffer irreparable loss as the 1st Respondent had no known assets. The 1st Respondent opposed, arguing the appeal was filed out of time by one day and was therefore a nullity, that the order appealed from was a negative order incapable of stay, and that the Applicant was a proxy colluding with the 2nd Respondent to defeat execution. The court found the Memorandum of Appeal was initiated in the e-filing system on 29th November 2024, within time, with payment made the following morning due to an MPESA challenge. Applying Section 20 of the Employment and Labour Relations Court Act and Rule 18 of the Court Rules, it distinguished the Salat case, exercised discretion to enlarge time and deemed the appeal duly filed. On the evidence, including proof that M & G Stationery was not a legal entity and that the Applicant paid rent for the proclaimed premises, an arguable appeal was disclosed. The court granted a stay limited to the Applicant's rented premises and goods therein, held the security condition inapplicable while the actual employer existed, allowed the application, awarded costs in the cause, directed filing of the record of appeal in 45 days, and set mention for 5th May 2025.

Key legal issues

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01

Whether the appeal filed one day outside the 30-day window (initiated on the e-filing system within time but paid for the next day) was a nullity.

Holding

The court exercised its discretion to enlarge time under Rule 18 and deemed the appeal duly filed, distinguishing the Salat case.

Reasoning

The Memorandum of Appeal was initiated in the e-filing system on 29th November 2024, within the 30-day timeline, but paid for on 30th November at 7.39 am. Applying the reasonable man test and taking judicial notice of e-filing challenges, the court found the delay of less than 24 hours attributable to an MPESA payment challenge and classified it as a technicality under Section 20 of the Employment and Labour Relations Court Act, warranting extension of time under Rule 18.

p. 8
02

Whether stay of execution could be granted of an allegedly negative order dismissing objection proceedings.

Holding

Yes, on a prima facie basis, the stay was justified as against the applicant's rented premises and goods therein, since execution would render a successful appeal nugatory.

Reasoning

While appreciating the jurisprudence that a negative order is incapable of stay, the court found the objector would be vulnerable to execution on its goods for association with M & G Stationery as a distributor. Evidence showed M & G Stationery did not exist as a legal entity, the applicant was incorporated on 16th December 2022, and the applicant paid rent for the proclaimed premises. An arguable appeal having been disclosed, and guided by Butt v Rent Restriction Tribunal, the court found stay necessary, limited to the applicant's rented premises and goods, execution otherwise proceeding against the 3rd Respondent.

p. 8
03

Whether the Order 42 Rule 6(2) conditions (substantial loss, no unreasonable delay, security) were met.

Holding

Substantial loss and arguability were established on the evidence; delay was minimal and explained; the security condition did not arise against the objector while the actual employer existed.

Reasoning

The applicant produced documents proving M & G Stationery does not exist as a legal entity, that the applicant was incorporated on 16th December 2022, and rent payment for the proclaimed premises, disclosing an arguable appeal. The court held execution could always proceed against the 3rd Respondent, the actual employer, while the appeal was pending, making security against the objector unnecessary.

p. 8

Legal principles established

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  • Where an appellant initiates filing of an appeal within time but payment is delayed by hours due to e-filing/MPESA challenges, the court may, applying the overhearing-against-technicality dictates of Section 20 of the ELRC Act, enlarge time and deem the appeal duly filed.
  • Stay of execution may issue to protect an objector's goods even where the order appealed from is a negative order, where the objector is vulnerable to execution over goods in premises it rents.

Court orders

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  1. 1.Stay of execution of the Ruling of the Honourable Magistrate delivered on 30th October 2024 in Milimani MCELRC No. E1649 of 2022 as against the applicant's rented premises and goods therein pending hearing and determination of the intended Appeal.
  2. 2.Leave granted for filing of the Appeal out of time and the Appeal deemed as filed.
  3. 3.Costs in the cause.
  4. 4.Record of appeal to be filed within 45 days.
  5. 5.Mention for disposal directions on 5th May 2025.
On appeal from
Employment and Labour Relations Court, Milimani
MCELRC No. E1649 of 2022
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act 2010; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Employment and Labour Relations Court Act; ELRC Court Rules (Rule 18)

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, "Baplix Company Limited v Baragu & another (Employment and Labour Relations Appeal E344 of 2024) [2025] KEELRC 861 (KLR)", Case Analysis (2025). Not stated in judgment (Appeal from Milimani MCELRC No. E1649 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/861/eng@2025-03-14

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