Wafula v Principal, Masimba High School & another (Cause E066 of 2023) [2025] KEELRC 1806 (KLR)
The bottom line
#A Kenyan court refused a public school's late appeal because it delayed, offered no security, and gave no arguable grounds.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for leave to file a Notice of Appeal out of time was made without unreasonable delay
- 2.Whether the Applicants satisfactorily explained the delay of about 45 days in filing the Notice of Appeal
- 3.Whether the Applicants offered or were obliged to offer security for the due performance of the decree, including the effect of Order 42 Rule 8 exempting Government from security
- 4.Whether the Applicants demonstrated substantial loss that would result if stay of execution is not granted
- 5.Whether the intended appeal is arguable
- 6.Who should bear the costs of the application
Key legal issues
#Whether the delay in filing the Notice of Appeal (about 45 days) was satisfactorily explained
The delay was not excused; the transfer of the handling State Counsel was unexhibited and implausible given the office of the Attorney General was seized of the matter
The Applicants attributed the delay to the transfer to Nairobi of Principal State Counsel Ms. Orege. The Court found that the Respondent being represented by the office of the Attorney General, the absence of one officer could not explain the failure to file the Notice of Appeal, and no evidence of the transfer was exhibited. The judgment had been rendered in the presence of Ms. Orege, who knew of the 14-day timeline. Indolence was therefore established.
Whether the Applicants were obliged to offer security for the due performance of the decree
The Applicants failed to offer security; the Order 42 Rule 8 exemption for Government does not avail a public school, and no offer of security or bank guarantee was substantiated before the Court
The Applicants argued that as a Government institution they were exempt from furnishing security, or alternatively that a bank guarantee should suffice. The Court noted the decree was a monetary award of about Kshs. 779,000/- and that the School, though public, is not Government. The Claimant had relied on authority holding that a school was not Government for the purposes of the Government Proceedings Act exemptions. The absence of any offer of security defeated the application.
Whether the intended appeal was arguable
No grounds of arguability were advanced, which sealed the fate of the motion
The Court distinguished between an appeal that must succeed and one that is arguable, accepting that only one arguable point suffices. However, the Applicants advanced no grounds demonstrating arguability of the proposed appeal in the Memorandum of Appeal. This omission, combined with the unexplained delay and lack of security, rendered the motion incapable of success.
Legal principles established
#- No order for stay of execution shall be made unless substantial loss may result to the applicant, the application is made without unreasonable delay, and such security as the Court orders for the due performance of the decree has been given
- A public school is not Government and cannot benefit from the security exemption applicable to Government under the Government Proceedings Act
- For an intended appeal, the applicant need show only that there is at least one arguable issue, not that the appeal will succeed
Court orders
#- 1.The notice of motion dated 5th May 2025 seeking leave to appeal out of time and stay of execution is dismissed
- 2.Costs of the application awarded to the Claimant/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court, Kisumu
- Kisumu ELRC No. 66 of 2023 – Stephen Wanjala Wafula v B.O.M Masimba High School & another
- Jurisdiction invoked
- Inherent/appellate jurisdiction to grant leave to appeal out of time and stay of execution pending appeal; Order 42 Rules 6 and 8 of the Civil Procedure Rules, 2010 invoked by the parties
Relief refused
#Leave to file a Notice of Appeal out of time from the judgment of 19th March 2025 in Kisumu ELRC No. 66 of 2023, with the Notice of Appeal deemed duly filed and served
The explanation of delay (transfer of the Principal State Counsel to Nairobi) was implausible, no transfer was exhibited, and no grounds of arguability of the intended appeal were advanced
Stay of execution of the judgment and decree and all consequential orders pending the hearing and determination of the intended appeal
The Applicants did not offer any security for the due performance of the decree (relying wrongly on the Government Proceedings Act exemption, the school not being Government), did not demonstrate substantial loss, and the application was marred by indolence
Costs
The motion is dismissed with costs to the Claimant/Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Respondent is represented by the largest law firm in the country and it is a stretch to assert the Applicants could not file their Notice of Appeal as the State Counsel was on transfer. In any event, there was no transfer exhibited.
It was argued that the Applicants were attempting to benefit from the provisions of the Government Proceedings Act yet the School is not Government. The School is undoubtedly a public school.
There were no grounds advanced as to the arguability of the appeal. The foregoing is ample proof that the motion is incapable of success. As such the motion is dismissed with costs to the Claimant/Respondent. Orders accordingly.
Issues in the judgment
#The judgment does not expressly name the deciding court; the context (leave to file a Notice of Appeal out of time from an ELRC judgment, 14-day timeline) indicates the Court of Appeal, but the coram describes the officer only as 'JUDGE'
The judgment is internally inconsistent on party roles: the notice of motion is described as being by 'the Respondent' and the heading 'Respondents/Applicants submissions' follows a passage stating 'The Respondent was opposed and filed an afidavit', which on the face of the text appears to misdescribe who opposed the application
The affidavit of the Claimant/Respondent is recorded as 'sworn on' with no date given, and the affidavit text is truncated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafula v Principal, Masimba High School & another (Cause E066 of 2023) [2025] KEELRC 1806 (KLR)", Case Analysis (2025). Notice of Motion dated 5th May 2025, arising from Kisumu ELRC No. 66 of 2023 – Stephen Wanjala Wafula v B.O.M Masimba High School & another. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1806/eng@2025-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.