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ELRCAllowedNotice of Motion dated 19th June 2024 (suit number not stated in judgment; arising from CMEL No. E1869 of 2021)· [2025] KEELRC 16 (KLR)

Printwell Indistries Limited v Kaloki (Employment and Labour Relations Appeal E175 of 2024) [2025] KEELRC 16 (KLR)

Employment and Labour Relations Court
14 January 2025
2,071 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court let Printwell Industries appeal a wrongful termination award late, but only after depositing the full decretal amount in a joint interest-earning account.

What this practically means

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Executive summary

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Printwell Industries Limited, the applicant, sought leave to appeal out of time against a judgment delivered on 5th April 2024 by Hon. S. N. Muchungi (PM) in CMEL No. E1869 of 2021 (Stephine Kimanthi Kaloki v Printwell Industries Limited), together with a stay of execution of that judgment and decree pending the intended appeal. The application, anchored on Sections 79G and 95 of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and Rule 17(1) of the ELRC Rules 2016, was supported by an affidavit of Benjamin Mwololo, which cited the request for certified proceedings, a draft memorandum of appeal, and a notification of sale of the applicant's motor vehicle KBM 411G. The respondent opposed, arguing the application denied him the fruits of his judgment, that he was gainfully employed and able to refund the decretal sum, and that any stay should be conditional on deposit of the full decretal amount. On extension of time, Keli J applied Rule 12(2) and Rule 18 of the ELRC (Procedure) Rules 2024 and the Supreme Court's principles in Fahim Yasin Twaha v Timamy Issa Abdalla, holding the two-month delay not inordinate and the triable issues on termination a satisfactory basis. On stay, the court filled the lacuna in the 2024 Rules with Order 42 Rule 6(2) CPC and applied Butt v Rent Restriction Tribunal, noting a temporary stay granted by Ocharo Kebira J on 9th July 2024. The application was allowed with leave to appeal out of time, the memorandum and record of appeal deemed duly filed, and stay granted on condition that the decretal amount be deposited in an interest-earning account in the joint names of both parties' advocates within 30 days, in default of which the stay lapses. Costs of the application were awarded to the Respondent, and mention was fixed for 17th February 2025 for directions.

Key legal issues

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01

Whether the two-month delay in applying for extension of time to appeal was inordinate and satisfactorily explained

Holding

The Court found the delay of two months was not inordinate and that the applicant laid a satisfactory basis, noting the intended appeal raised triable issues on the termination of employment.

Reasoning

Applying the Supreme Court's principles in Fahim Yasin Twaha v Timamy Issa Abdalla, the court weighed the reason for delay, prejudice, and whether the application was brought without undue delay. Although the applicant did not disclose the reason for the delay, the court noted the appeal raised triable issues regarding whether the respondent's employment was terminated for absconding duty and whether the trial court relied on documents not produced at trial, and found the delay of two months not inordinate.

p. 4
02

Whether stay of execution of the decree pending appeal should be granted

Holding

Stay of execution was granted on condition that the decretal amount be deposited in an interest-earning account in the joint names of both parties' advocates within 30 days, failing which the order lapses automatically.

Reasoning

The court applied Order 42 Rule 6(2) of the Civil Procedure Rules, filling the lacuna in the ELRC Procedure Rules 2024, and the Court of Appeal's guidance in Butt v Rent Restriction Tribunal. It found no inordinate delay, triable issues in the memorandum of appeal, willingness by the applicant to provide security, and an existing temporary stay granted by Ocharo Kebira J on 9th July 2024; it was therefore not in the interest of justice to prevent the appeal.

p. 5

Legal principles established

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  • Extension of time is an equitable remedy available to a deserving party at the discretion of the Court, and the applicant bears the burden of laying a basis for the extension.
  • A stay of execution should be granted so that an appeal is not rendered nugatory, where there is no overwhelming hindrance.
  • Where the court's own rules are silent on the conditions for granting a stay pending appeal, the lacuna is addressed by Order 42 Rule 6(2) of the Civil Procedure Rules.

Court orders

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  1. 1.The Applicant is granted leave to file an appeal out of time against the Judgment delivered on 5th April 2024 by Honourable S. N. Muchungi (PM) in CMEL No. E1869 of 2021
  2. 2.The Memorandum of Appeal dated 19th June 2024 and Record of Appeal dated 4th October 2024 are deemed as duly filed
  3. 3.An order of stay of execution of the judgment dated 5th April 2024 and the resultant decree is granted pending the hearing and determination of the appeal, on condition that the decretal amount is deposited in an interest-earning account held in the names of the advocates of both parties within 30 days, in default of which the order lapses automatically unless extended by Court on application
  4. 4.Costs of the application to the Respondent
  5. 5.Mention on 17th February 2025 for directions on hearing of the appeal
On appeal from
Magistrate's Court (employment cause)
CMEL No. E1869 of 2021: Stephine Kimanthi Kaloki vs. Printwell Industries Limited
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act; Rule 18 of the Employment and Labour Relations Court (Procedure) Rules 2024; Rule 17(1) of the Employment and Labour Relations Court (Procedure) Rules 2016

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, "Printwell Indistries Limited v Kaloki (Employment and Labour Relations Appeal E175 of 2024) [2025] KEELRC 16 (KLR)", Case Analysis (2025). Notice of Motion dated 19th June 2024 (suit number not stated in judgment; arising from CMEL No. E1869 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/16/eng@2025-01-14

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