Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedELRC (Eldoret) Misc. Application - Motion dated October 12, 2022 (arising from Eldoret CM ELRC No 205 of 2019)· [2023] KEELRC 960 (KLR)

Board of Management, Friends School, Senende v Abwala (Miscellaneous Cause E026 of 2022) [2023] KEELRC 960 (KLR)

Employment and Labour Relations Court
28 April 2023
ANABUODHA JORUM NELSON
1,460 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court let a school appeal one day late and froze the judgment, ruling short delays and arguable appeals deserve a fair hearing.

What this practically means

#

Executive summary

#
By a motion dated October 12, 2022, the Board of Management of Friends School Senende sought leave to appeal out of time and stay of execution of the judgment and decree delivered on September 9, 2022 in Eldoret CM ELRC No 205 of 2019, in which a former employee of the school had succeeded. The applicant, through the affidavit of its Principal, Albert Masiolo Khalwale, explained that the judgment was delivered without notice to it or its advocates, that the respondent's advocates only notified them by email of September 15, 2022, which came to their attention on September 20, 2022, and that closure of schools delayed instructions until October 7, 2022, resulting in a delay of only one day beyond the expiry of the appeal period. The respondent opposed, contending the delay was inexcusable, that schools' closure does not halt a board's management, and that no deposit for typed proceedings had been made; he relied on Section 79G of the Civil Procedure Act. The court, applying the settled principles that extension of time is discretionary and requires absence of inordinate delay and an arguable appeal (not one with high probability of success), found the one-day delay not inordinate and the draft grounds of appeal arguable. On stay, guided by Order 42 Rule 6(2) of the Civil Procedure Rules, and taking judicial notice that the applicant is a school funded from fees and government grants, the court declined to order security. The court granted leave to appeal out of time, deemed the draft memorandum of appeal duly filed upon payment of requisite fees, and stayed execution of the judgment of September 9, 2022 pending the appeal.

Key legal issues

#
01

Extension of time to file appeal out of time

Holding

A one-day delay is not inordinate and the Applicant demonstrated arguable grounds of appeal, warranting leave to appeal out of time.

Reasoning

The court applied the settled principles: the application must be brought without inordinate delay and the applicant must demonstrate an arguable appeal, not one with a high probability of success. The delay here was one day only, and the draft memorandum raised arguable grounds concerning the lawfulness of the summary dismissal and the award of leave pay without concrete evidence.

p. 3
02

Stay of execution pending appeal and security

Holding

Stay of execution was granted, but the Applicant was excused from furnishing security given its nature as a school funded from fees and government grants.

Reasoning

Order 42 Rule 6(2) of the Civil Procedure Rules guides the discretion. The court took judicial notice that the applicant is a school offering a public service whose major funding source is fees and government grants, and found it would be burdensome to order it to furnish security for due performance of the decree.

p. 3

Legal principles established

#
  • Grant or refusal of extension of time to appeal out of time is at the discretion of the judge, guided by absence of inordinate delay and demonstration of an arguable appeal, which need not show high probability of success.
  • Stay of execution pending appeal is discretionary and governed by Order 42 Rule 6(2) of the Civil Procedure Rules.

Court orders

#
  1. 1.Leave granted to the Applicant to appeal out of time
  2. 2.The draft memorandum of appeal to be deemed duly filed upon payment of the requisite Court fees
  3. 3.Stay of execution of the judgment delivered on September 9, 2022 in Eldoret CM ELRC No 205 of 2019 and consequential orders pending the hearing and determination of the appeal

Authorities

#

Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 6(2)
On appeal from
Chief Magistrate's Court, Eldoret (ELRC)
Eldoret CM ELRC No 205 of 2019
Jurisdiction invoked
Discretion under the proviso to Section 79G of the Civil Procedure Act and Order 42 Rule 6(2) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Board of Management, Friends School, Senende v Abwala (Miscellaneous Cause E026 of 2022) [2023] KEELRC 960 (KLR)", Case Analysis (2023). ELRC (Eldoret) Misc. Application - Motion dated October 12, 2022 (arising from Eldoret CM ELRC No 205 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/960/eng@2023-04-28

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