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ELRCPartially AllowedCM ELRC NO. 409/18 (Appeal from that suit; application dated 22nd March, 2024)· [2024] KEELRC 2383 (KLR)

Ready Consultancy Limited v Mosomi (Appeal E075 of 2024) [2024] KEELRC 2383 (KLR)

Employment and Labour Relations Court (Appeals Division)
27 September 2024
AJABUODHA NELSON JORUM
1,861 words in judgment
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The bottom line

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The Employment Court allowed a late appeal and stopped execution of a KSh 1.29 million judgment, but only if the appellant deposits half the amount within 30 days.

What this practically means

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Executive summary

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This is a ruling on an application dated 22nd March, 2024 by the Appellant seeking extension of time to file an appeal out of time and stay of execution of the judgment in CM ELRC NO. 409/18 delivered on 30th November, 2023, together with a stay of proclamation of its goods by Nairobi Connection Service Ltd auctioneers. The application was supported by an affidavit of Mohamed Issa Ducale, the Managing Director, who attributed the delay of about four months to failure to obtain a typed judgment and his absence from the country on business engagements. The Respondent opposed the application, contending it was frivolous, vexatious and an abuse of process; that the appeal was time-barred; and that the Appellant had not come to court with clean hands. He alternatively proposed payment of half the decretal amount into court and deposit of the balance in a joint interest-earning account. The court applied Section 79G of the Civil Procedure Act and the Thuita Mwangi v Kenya Airways factors on extension of time, noting judgments are now accessible on the CTS and that the Appellant had not demonstrated genuine attempts to obtain the judgment, concluding the Appellant was not approaching the court with clean hands. Nonetheless, in the interest of justice, the court deemed the draft Memorandum of Appeal duly filed upon payment of requisite court fees. On stay, applying Order 42 Rule 6 and James Wangalwa v Agnes Naliaka Cheseto, the court granted a conditional stay of execution upon deposit of half the decretal sum into a joint interest-earning account within 30 days. The matter was set for mention on 11th November, 2024, with costs in the cause.

Key legal issues

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01

Extension of time to file appeal under Section 79G

Holding

Delay of about four months was unreasonable and the Appellant was not approaching the court with clean hands, but in the interest of justice the draft Memorandum of Appeal was deemed duly filed

Reasoning

The court applied Section 79G and the Thuita Mwangi factors. The judgment was delivered in the presence of both advocates on 30th November, 2023; the delay was about four months. Judgments are posted on the CTS for advocates' access, and the Appellant did not attach any letter to the court requesting the typed judgment, leading to the conclusion that the Appellant knew of the judgment. Still, the interest of justice favoured granting a right to be heard on the intended appeal.

p. 3
02

Stay of execution under Order 42 Rule 6

Holding

Stay granted on condition that half the decretal sum be deposited in a joint interest-earning account in the names of the advocates within 30 days

Reasoning

Having allowed the appeal to be filed out of time, execution before the determination of the appeal would render the appeal nugatory if it succeeded. The court applied the conditions in Order 42 Rule 6 and the principles in Joseph Odide Walome v David Mbadi Akello and James Wangalwa & Anor v Agnes Naliaka Cheseto on substantial loss, balancing the interests of both parties through a conditional stay.

p. 4

Legal principles established

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  • An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time
  • Stay of execution requires substantial loss, absence of unreasonable delay and security for due performance of the decree

Court orders

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  1. 1.The Appellant's draft Memorandum of Appeal is deemed duly filed upon payment of requisite court fee
  2. 2.Stay of execution of the judgment in CM ELRC NO. 409/18 granted on condition that the applicant deposits half the decretal sum in a joint interest earning account in the name of the advocates within 30 days
  3. 3.Mention on 11th November, 2024 to confirm compliance and give directions on hearing and disposal of the appeal
  4. 4.Costs in the cause
On appeal from
Magistrates' Court (ELRC - CM ELRC NO. 409/18)
CM ELRC NO. 409/18
Jurisdiction invoked
Sections 1A, 3A, 79G of the Civil Procedure Act and Order 50 Rule 6 and Order 22 Rule 22(1) of the Civil Procedure Rules

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, "Ready Consultancy Limited v Mosomi (Appeal E075 of 2024) [2024] KEELRC 2383 (KLR)", Case Analysis (2024). CM ELRC NO. 409/18 (Appeal from that suit; application dated 22nd March, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2383/eng@2024-09-27

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