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ELRCAllowedMisc Application No E009 of 2024· [2025] KEELRC 1456 (KLR)

Frodak Kenya Limited v Simon (Miscellaneous Application E009 of 2024) [2025] KEELRC 1456 (KLR)

Employment and Labour Relations Court (High Court status; judgment delivered at Kakamega)
15 May 2025
2,996 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court let a company appeal late because its former lawyers missed the deadline, but only if it first deposits the full judgment amount in court.

What this practically means

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Executive summary

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By a decree dated 27th November 2024, the respondent was awarded Kshs129,638 in compensation and Kshs137,210 in costs against the applicant in Butali CMC ELR No. 1 of 2018, judgment having been delivered by Hon. Reuben S. Kipngeno (PM) on 28th October 2024. The applicant, a judgment-debtor, moved the court by notice of motion seeking leave to appeal out of time and an order that such leave operate as a stay of execution, relying on Sections 3A, 75, 78 and 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. It attributed the delay to its former advocates' failure to file the appeal in time, asserting an arguable appeal and no prejudice to the respondent. The respondent opposed, citing a 46-month delay, material non-disclosure, and the absence of a filed appeal to ground a stay. Framing two issues, the court applied the Salat principles on extension of time and found the delay of one month and 21 days reasonably explained by the change of advocates, and the draft memorandum of appeal prima facie arguable. On stay, it applied Order 42 Rule 6(2), James Wangalwa and Butt, noted the respondent's unknown capacity to refund the decretal sum, and invoked the overriding objective. The application was allowed: the applicant to file the appeal within 60 days and deposit the entire decretal sum plus costs in court within 30 days, failing which the stay lapses. Costs abide the appeal.

Key legal issues

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01

Extension of time to file appeal out of time

Holding

Delay of one month and 21 days was excusable as reasonably explained by change of advocates; the draft memorandum of appeal raises arguable issues.

Reasoning

The court applied the Salat principles: length and reason for delay, arguability of the intended appeal, and prejudice to the respondent. The applicant explained that its former advocates failed to file the appeal within the 30-day statutory period under Section 79G, and the new advocates moved promptly after instruction. The respondent was found to suffer no real prejudice, as stay only delays enjoyment of the decree.

p. 4
02

Stay of execution pending the intended appeal

Holding

Stay granted conditional on the applicant depositing the entire decretal sum plus costs in court within 30 days, failing which the stay lapses.

Reasoning

Under Order 42 Rule 6(2) the applicant must show substantial loss, no unreasonable delay, and give security. Though the applicant had not pleaded substantial loss, the respondent's means to refund the decretal sum were unknown, so execution could render the intended appeal nugatory. Guided by Butt v Rent Restriction Tribunal and the overriding objective (Sections 1A and 1B CPA), the court granted stay conditioned on security.

p. 6

Legal principles established

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  • An appeal may be admitted out of time if the appellant satisfies the court of good and sufficient cause for not filing in time (Section 79G, Civil Procedure Act).
  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, assessed case by case.
  • Substantial loss is the cornerstone of a stay of execution application under Order 42 Rule 6.
  • Stay of execution only delays enjoyment of a judgment; delay is not denial.

Court orders

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  1. 1.The application dated 18th December, 2024 is merited and is hereby allowed
  2. 2.The applicant shall file the intended appeal within 60 days of this ruling and thereafter take a mention date for directions on the hearing and disposal of the appeal
  3. 3.Stay of execution granted on condition that the applicant shall within 30 days of the ruling deposit the entire decretal sum plus costs in court, failing which the stay shall automatically lapse
  4. 4.Costs shall abide with the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 75
  • Civil Procedure ActSection 78
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure Rules, 2010Order 50 Rule 6
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rules 12(1), 12(2) and 18
  • Constitution of KenyaArticles 48 and 50(1)

Cases cited (9)

  • Edith Gichungu Koine v Stephen Njagi Thoithi
    [2014] eKLR
  • Kamlesh Mansukhalal Damki Patni v Director of Public Prosecutions & 3 others
    [2015] eKLR
  • Stecol Corporation Limited v Susan Awuor Mudemba
    [2021] eKLR
  • Thuita Mwangi v Kenya Airways Ltd
    [2003] eKLR
  • Telkom Kenya Limited v John Ochanda & 996 others
    [2015] eKLR
  • Samvir Trustee Limited v Guardian Bank Limited
    [2007] eKLR
  • Nicholas Kiptoo Korir Salat v IEBC & 7 others
    [2014] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
On appeal from
Butali Chief Magistrate's Court (CM ELRC)
Butali CMELRC 1 of 2018
Jurisdiction invoked
Sections 3A, 75, 78 & 79G of the Civil Procedure Act (Cap 21) and Order 50 Rule 6 of the Civil Procedure Rules, 2010; 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, "Frodak Kenya Limited v Simon (Miscellaneous Application E009 of 2024) [2025] KEELRC 1456 (KLR)", Case Analysis (2025). Misc Application No E009 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1456/eng@2025-05-15

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