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ELRCDismissedNot stated in the judgment excerpt

Royal Garments Industries EPZA Limited v Kanyanga (Miscellaneous Case E089 of 2023) [2023] KEELRC 2052 (KLR)

Employment and Labour Relations Court (implied from parties and intended appeal from Hon S. N Muchungi; court name not expressly printed in excerpt)
28 July 2023
NAN. Abuodha
1,066 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused an employer's late appeal and stay request because it waited months without a good reason, allowing the worker to enforce her judgment.

What this practically means

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Executive summary

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This was an interlocutory application dated February 28, 2023 by Royal Garments Industries EPZA Limited, the applicant, seeking extension of time to file an appeal against the judgment of the trial court (Hon S. N Muchungi) delivered on December 29, 2022, together with a stay of execution of that judgment and the decree issued thereafter. The respondent, Victoria Nyaga, opposed the application through a replying affidavit, arguing that the applicant had given no good reason for the delay, that proceedings were not needed to file an appeal, that the conditions in order 42 rule 6(2) of the Civil Procedure Rules were not met, and that the applicant had further delayed by close to two months between dating and filing the motion. The court noted that the 30-day stay informally granted by the trial court lapsed around January 30, 2023, yet the application was only filed on April 19, 2023 - some three and a half months later - and no reasonable explanation was offered for the inordinate delay. The alleged request for typed proceedings was unsupported by evidence, and in any event such proceedings are not a prerequisite for a stay application. The court held that the power to extend time is discretionary and requires sufficient cause, which was lacking, and that the applicant had treated the court process casually, the motion being merely intended to delay the respondent from enjoying the fruits of her judgment. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted extension of time to file an appeal out of time
  2. 2.Whether a stay of execution of the judgment and decree of December 29, 2022 should be granted

Key legal issues

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01

Whether the delay in filing the application and the intended appeal was satisfactorily explained

Holding

The delay of about three and a half months from expiry of the 30-day stay (and over five months since judgment) was inordinate and unexplained; extension of time was refused

Reasoning

The court found that judgment was delivered on December 29, 2022 with a 30-day stay expiring around January 30, 2023. The application dated February 28, 2023 was only filed on April 19, 2023. No reasonable explanation was offered for this inordinate delay, and the alleged request for typed proceedings was unsupported by evidence and in any event not a prerequisite. Sufficient cause for the delay was therefore lacking.

p. 3
02

Whether the conditions for stay of execution under order 42 rule 6(2) were met

Holding

The conditions were not satisfied; the court found the application was brought casually merely to delay the respondent from enjoying the fruits of her judgment

Reasoning

Order 42 rule 6(2) requires substantial loss, an application made without unreasonable delay, and security for due performance of the decree. The court found the applicant indolent, having delayed close to two months even after acknowledging it was out of time, and concluded the motion was intended merely to delay execution. The application was dismissed with costs.

p. 3

Legal principles established

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  • Extension of time to appeal out of time is discretionary and requires sufficient cause for the delay to be shown
  • The conditions for a stay of execution are substantial loss, application made without unreasonable delay, and security for due performance of the decree
  • Typed proceedings are not a prerequisite for filing an application for stay of execution

Court orders

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  1. 1.The application dated February 28, 2023 is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AN
majority

Wrote the judgment

On appeal from
Not stated (trial court, Hon S. N Muchungi)
Jurisdiction invoked
Not expressly stated in the excerpt; application brought under order 42 rule 6(2) of the Civil Procedure Rules, 2010 and the court's discretionary power to extend time to appeal

Relief refused

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Extension of time to file an appeal out of time

No sufficient cause or reasonable explanation offered for the inordinate delay of over five months since judgment

p. 3

Stay of execution of the judgment and decree

No reasonable explanation for delay in bringing the application and no evidence of request for typed proceedings; application intended only to delay enjoyment of the judgment

p. 3

Costs

Application dismissed with costs (costs to the respondent).

Quotable passages

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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 application is therefore found without merit and is hereby dismissed with costs.
p. 3Disposition - dismissal of the motion
The power to grant extension of time to file an appeal out of time is discretionary and for the court to exercise such discretion in favour of the applicant, suficient cause for the delay must be shown.
p. 3Discretion to extend time
In any event such proceedings are not a prerequisite for filing an application for stay of execution.
p. 3Typed proceedings not a prerequisite for stay
the applicant has taken the court process quite casually and the present application is merely intended to delay the respondent from enjoying the fruits of her judgment.
p. 3Abuse of process / indolence

Issues in the judgment

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minor

Filing date of the application is stated inconsistently within the judgment

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, "Royal Garments Industries EPZA Limited v Kanyanga (Miscellaneous Case E089 of 2023) [2023] KEELRC 2052 (KLR)", Case Analysis (2023). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2052/eng@2023-07-28

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