Hirji Premji Dabasiya Hitesh v Evans Michoma Makwaro & Bhachu Industries Lukenya Site

Applicant’s Case 2 The Applicant states that judgment in Mavoko ELRC Cause No. E065 of 2022, Evans Michoma Makwaro v Bhachu Industries (Lukenya Site) was delivered on 8 th August 2025 in the absence of the Applicant and/or his Advocate. 3 He avers that neither he nor his then Advocates on record were served with a notice of delivery of the judgment and that he only became aware of the judgment on 23 rd January 2026. 4 The Applicant states that the delay in filing the intended appeal was not deliberate but was occasioned by the lack of notice of delivery of the judgment and factors beyond his control. 5 He contends that upon becoming aware of the judgment, he moved with dispatch and filed the present Application, therefore, he is not guilty of laches or undue delay. 6 He further asserts that he was never served with a Notice of Entry of judgment as required under Order 22 Rule 6 of the Civil Procedure Rules. 7 He states that the 1st Respondent has not exhibited any affidavit of service or other proof demonstrating that either he or his former Advocates were served with the judgment or notified of its delivery. It is his contention that no lawful execution could commence in the absence of the requisite Notice of Entry of Judgment. Page 2 of 12

page 2 of 12

8 The Applicant further contends that the intended appeal is arguable and has high chances of success. In particular, he challenges the trial Court’s finding that there existed an employer-employee relationship as defined under Section 2 of the Employment Act, 2007. 9 He states that the draft Memorandum of Appeal demonstrates arguable grounds warranting the exercise of his right of appeal. 10 It is the Applicant’s case that the 1 st Respondent stands to suffer no prejudice that cannot be adequately compensated by an award of costs if the orders sought are granted. 1st Respondent’s Case 11 In opposition to the application, the 1 st Respondent filed a replying affidavit dated 11th February 2026. 12 The 1st Respondent avers that judgment in Mavoko ELRC Cause No. E065 of 2022 was delivered on 8th August 2025 in his favour against the Applicant for Kshs. 86,500 together with costs and interest, which judgment remains unsatisfied. 13 He contends that the present Application is devoid of merit and is a contrived attempt to frustrate the execution of a valid and enforceable judgment. 14 The 1st Respondent asserts that the Applicant is guilty of laches, having filed the application on 27 th January 2026, over five months after delivery of the judgment. Page 3 of 12

page 3 of 12

15 He states that the Applicant has not offered any cogent explanation for the delay, other than the assertion that he only learnt of the judgment upon service of a proclamation notice. 16 It is his contention that the delay demonstrates lack of diligence and an intention to frustrate the execution process. 17 On the issue of service, the 1st Respondent contends that the Applicant was at all material times represented by Dennis Gicheru Wanjiru & Co. Advocates, who actively participated in the proceedings and were duly served with court processes, including the Judgment. 18 He asserts that service upon an Advocate on record constitutes valid service upon the party. in support thereof, he relies on the notice of appointment dated 14th August 2023 and correspondence showing a judgment notice dated 31st July 2025. 19 The 1st Respondent further states that he stands to suffer prejudice if the orders sought are granted, as execution proceedings have already commenced and he has a vested right to enjoy the fruits of the Judgment. 20 He contends that a stay would occasion further delay, expose him to continued financial hardship through accruing interest and costs, and deny him the benefit of a judgment already obtained. Page 4 of 12

page 4 of 12

21 He further contends that the Applicant has failed to demonstrate an arguable appeal with a likelihood of success. He states that the Applicant has merely made bald assertions of dissatisfaction with the Judgment without identifying specific errors of law or fact warranting appellate intervention and, according to him, has failed to disclose the grounds of the intended appeal. 22 The 1st Respondent also asserts that the Applicant has not demonstrated that he would suffer substantial loss if stay is not granted. He contends that the applicant has presented no evidence to substantiate the alleged risk of the decretal sum being unrecoverable or the intended appeal being rendered nugatory, and that the balance of convenience therefore tilts in his favour. 23 It is the 1st Respondent’s case that the application amounts to an abuse of the Court process and smacks of forum shopping, the Applicant having lost at trial and seeking to re-litigate settled issues through a miscellaneous application without properly pursuing the appellate process or satisfactorily explaining the delay. 24 He contends that this offends the overriding objective of the law and the constitutional requirement for expeditious resolution of disputes. 25 In the alternative, the 1st Respondent states that should the Court be inclined to grant a stay, the same ought to be conditional upon the Applicant depositing the entire decretal amount together with costs and interest in an interest-bearing account in the joint names of the parties’ Page 5 of 12

page 5 of 12

respective Advocates, pending the hearing and determination of the intended appeal. Applicant’s Submissions 26 It is the Applicant’s submissions that the sole issue for determination is whether the Court should exercise its discretion and grant leave to appeal out of time. 27 He submitted that the power to enlarge time is anchored in Section 79G of the Civil Procedure Act, as read with Section 12(3)(vii) of the Employment and Labour Relations Court Act, and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016. 28 It is the Applicant’s submission that the discretion is judicial and ought to be exercised judiciously, taking into account the length and reason for the delay, the arguability of the intended appeal, prejudice to the Respondent and the interests of justice. 29 On delay, the Applicant submitted that the judgment was delivered on 8th August 2025 without notice to him or his Advocates on record. He contended that neither he nor his Advocates were served or notified of the delivery of judgment and that the Respondent had not adduced evidence to controvert this position. 30 He further submitted that he only became aware of the judgment upon service of warrants of attachment and Page 6 of 12

page 6 of 12

thereafter acted promptly to obtain the judgment and proceedings and moved the Court. 31 It was therefore argued that the delay was occasioned by circumstances beyond his control, was neither deliberate nor intended to obstruct the course of justice, and constituted good and sufficient cause within the meaning of Section 79G. 32 In support of this position, the Applicant relied several cases including Banking Insurance & Finance Union (Kenya) v Murata Sacco Society Limited [2014] eKLR for the proposition that procedural lapses attributable to the Court or registry, including failure to notify parties of judgment, should not be visited upon an innocent litigant. 33 The Applicant submitted that the delay was approximately four months and was not inordinate, excessive or unreasonable in the circumstances. He argued that the question whether delay is inordinate depends on the circumstances of each case and maintained that he moved the Court expeditiously upon becoming aware of the Judgment. 34 As regards the intended appeal, the Applicant submitted that the draft Memorandum of Appeal raises bona fide and triable issues concerning the trial Court’s evaluation of the evidence and, in particular, its finding on the existence of an employer-employee relationship between the parties. 35 He further challenged the sufficiency and reliability of the evidence relied upon by the trial Court and contended that Page 7 of 12

page 7 of 12

the decision was against the weight of the evidence. The Applicant maintained that an arguable appeal need not be one that must ultimately succeed, but one that raises a bona fide issue deserving consideration by an appellate Court. 36 The Applicant further submitted that the Respondent would suffer no undue prejudice if leave were granted, as any inconvenience occasioned could be compensated by costs. Conversely, he argued that he would suffer prejudice if shut out from exercising his right of appeal. 37 On the interests of justice, the Applicant relied on Articles 50(1), 159(2)(d) and 41 of the Constitution, submitting that the Court is enjoined to uphold the right to a fair hearing, administer justice without undue regard to procedural technicalities and protect labour rights. 38 It was therefore argued that the dispute ought to be determined on its merits rather than the Applicant being denied an opportunity to pursue his appeal on account of a procedural lapse which was not attributable to him. 39 The Applicant placed reliance on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR for the established principles governing extension of time, submitting that the discretion substantive to enlarge justice time and is that determinative. Page 8 of 12 intended no single to advance factor is

page 8 of 12

1st Respondent’s Submissions 40 The 1st Respondent submitted on two issues: whether the Applicant was properly served with the judgment notice; whether the Applicant has shown good and sufficient cause to justify the grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. 41 The Respondent submitted that the Applicant was duly served with the notice of delivery of judgment through his Advocates on record, Dennis Gicheru Wanjiru & Co. Advocates. 42 He submitted that the notice was served by email to the same email address routinely used by the Applicant’s Advocates to serve pleadings, correspondence and submissions in the matter. 43 It was argued that electronic service is recognized under Order 5 Rule 22B of the Civil Procedure Rules and relied on Republic v Cabinet Secretary for Ministry of Interior & Coordination of National Government & 2 others Ex parte Patricia Olga Howson [2013] eKLR for the proposition that service by email is effective where dispatch to a known and consistently used address is demonstrated. 44 The 1st Respondent further submitted that service upon an Advocate on record constitutes proper service upon the party represented. He argued that the Applicant’s denial of service is therefore untenable, particularly as the Applicant does not dispute the ownership, control or use of the email address through which the notice was served. Page 9 of 12

page 9 of 12

45 It was contended that the consistent use of the same email address for litigation correspondence before and after delivery of Judgment negates the Applicant’s assertion that no notice was received. 46 On the second issue, the 1st Respondent submitted that the Applicant’s principal explanation of non-service was untrue and unsupported by evidence, given that the notice had been served upon his Advocate on record. 47 Relying on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, he submitted that sufficient cause must be real, credible and bona fide and that extension of time is a discretionary remedy, not a right. In his view, the Applicant has failed to meet the evidential threshold for the exercise of that discretion. 48 The 1st Respondent further submitted that execution was properly commenced upon expiry of the automatic 30-day stay under Section 22 of the Employment Act, 2007; thereafter, the Applicant remained inactive for approximately five months. He argued that such delay was excessive and had not been credibly explained, particularly in circumstances where the Applicant’s Advocates were actively corresponding through the email address used for service. 49 It is the 1st Respondent’s submission that the Applicant is guilty of laches and to has failed to demonstrate an arguable appeal or substantial loss. Page 10 of 12

page 10 of 12

50 The 1st Respondent submitted that courts have repeatedly held that unexplained or poorly explained delay is fatal. Courts condemn indolent litigants who seek to revive proceedings long after statutory timelines lapse without demonstrating diligence. A five-month delay, devoid of any cogent justification, is inherently prejudicial, offends principles of finality and cannot be excused. 51 On the applicable principles, the 1st Respondent relied on Salat v Independent Commission (Supra), Electoral submitting and Boundaries that the Court’s discretion is guided by, inter alia, the requirement that the Applicant explain the delay and account for the entire period, the prejudice likely to be occasioned to the opposing party, and whether the intended appeal is arguable. 52 It is the 1st Respondent’s submission that the Applicant has failed to satisfy these parameters, as the delay remained unexplained, the explanation advanced was false, and the 1st Respondent continued to suffer prejudice from uncertainty over a concluded matter and the delay in execution. 53 I have examined all the averments and submissions of the parties herein. The applicant has come to court seeking prayers before this court for extension of time within which to file an appeal out of time. The reason given for the delay in filing the appeal is failure of being served with a judgment notice in response to the application. The respondent claimant filed a notice of judgment dated 31/7/25 sent to the applicant’s email Gicheru80@gmail.com Page 11 of 12

page 11 of 12

on the same day informing the applicant’s counsel of the scheduled delivery of the said judgment on 8/8/25. 54 The applicants have not denied receiving this notice of judgment delivery and neither have they explained why they did not attend to the judgment after knowing of its delivery. 55 The judgment was delivered in August 2025. The respondent applicants approached court four months later seeking the prayers herein. The judgment having been delivered after the applicants were duly notified, it is my finding that the applicants are guilty of laches and not deserving of the orders sought. I decline to grant the orders prayed and I dismiss this application with costs accordingly. Dated, Signed and Delivered virtually at Nairobi this 24th Day of September 2026. HELLEN WASILWA JUDGE Page 12 of 12

page 12 of 12