https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2290

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **CAUSE NO. E034 OF 2025** AMALGAMATED UNION.........................................................**CLAIMANT** **VERSUS** RALLYTECH MOTORS LIMITED......................……..……**RESPONDENT** **RULING** 1. Before the Court is the Notice of Motion dated 2nd May 2026 by the Respondent/Applicant. It is expressed to be brought under Rule 17 of the Court of Appeal Rules, sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and other enabling provisions of the law. The Applicant seeks orders that: * + 1. *Spent* 2. Execution of the Court’s order requiring deposit of the decretal sum pursuant to the judgment delivered on 27th January 2026 be stayed pending the hearing and determination of the intended appeal; 3. Time be extended for filing and serving the Notice of Appeal out of time; 4. The Notice of Appeal already lodged be deemed as duly filed and served upon payment of the requisite court fees; and 5. Costs be provided for. 2. The application is supported by the affidavit of Mr. Noreez Shamji, the Respondent’s Director, sworn on 2nd May 2026. He depones that judgment was delivered on 27th January 2026 and that the Applicant’s subsequent application to set aside the ex parte judgment was dismissed on 20th April 2026. He states that the Applicant lodged a Notice of Appeal on 21st April 2026 but was unable to file and serve it within time due to delays occasioned by the Court’s CTS assessment process, which resulted in a further invoice being issued after the initial assessment had been paid. The Applicant further contends that the delay was inadvertent and excusable, that the intended appeal raises arguable issues relating to the right to be heard, and that execution of the order requiring deposit of the decretal sum would render the intended appeal nugatory. It is also deponed that the Applicant is experiencing liquidity constraints and is unable to raise the sum of Kshs. 1,800,000/- at once, but is willing to comply with any security that the Court may impose. 3. The application is opposed through a Replying Affidavit sworn by Rose Omamo its Secretary General. She deposes that the application is in bad faith because at a meeting on 8th May 2026 the Respondent’s Director undertook to take a loan to settle the decretal amount. She further deposes that subsequently on the 12th to 16th May 2026 the Claimant made enquiries as to the status of the of the loan, but no response was forthcoming only for them to file this application to delay the course of justice. As for the merits of the appeal, she deposes that it merely raises the same issues as those in the review application dated 13th February 2026. The Respondent further contends that Applicant has failed to demonstrate any circumstances justifying extension of time. The court is accordingly urged to dismiss the application with costs. The application was canvassed by way of written submissions. Respondent/Applicant’s Submissions 1. In support of the application, the Respondent identifies the following issues for determination: * + 1. Whether stay of the order requiring deposit of the decretal sums pending the intended appeal should be granted; 2. Whether sufficient cause has been shown to warrant extension of time to file and serve the Notice of Appeal; 3. Whether the Notice of Appeal already lodged should be deemed as duly filed and served; and 4. Who should bear the costs of the application. 2. On the first issue the Respondent submits that the Court has discretion to preserve the substratum of an intended appeal so that the appeal is not rendered nugatory. It asserts that it has been unable to comply with the order requiring deposit of the decretal sums and is even ready to offer tangible assets as security in good faith pending the hearing and determination of the intended appeal. The Applicant relies on Articles 50(1) and 159(2) of the Constitution, contending that refusal to grant stay would render the intended appeal illusory and impose a substantial financial burden before the appellate court has considered the legality of the impugned ruling. It maintains that the intended appeal is arguable and that the balance of convenience favours preservation of the *status quo*. The Applicant cites **Butt *v* Rent Restriction Tribunal (1979 KECA 22 (KLR)** for the principle that the grant of stay is discretionary and depends on the circumstances of each case. 3. On the second issue, the Respondent submits that Rule 4 of the Court of Appeal Rules, 2022 empowers the Court to extend time for the doing of any act prescribed by the Rules. It contends that the delay arose from under-assessment of the Notice of Appeal by the Court, failure to notify the parties of the under-assessment, and the subsequent delay in signing and processing the notice. It asserts that the delay is minimal and attributable to circumstances beyond their control. They draw attention to the fact that the Notice of Appeal was signed on 4th May 2026, served on 14th May 2026 and proceedings were supplied on 22nd May 2026. 4. On whether the notice of appeal should be deemed as duly filed and served, the Respondent submits that, having demonstrated sufficient cause for enlargement of time, the Notice of Appeal already lodged should be validated and deemed as duly filed and served. It argues that the notice clearly manifests its intention to challenge the impugned decision and that any defect relates only to time and not substance. Relying on Article 159(2) of the Constitution, the Applicant contends that procedural lapses should not defeat substantive justice where no prejudice has been occasioned to the Respondent. 5. On costs the Applicant submits that costs are discretionary under section 12 of the Employment and Labour Relations Court Act. It urges the Court to order that costs abide the outcome of the intended appeal or, alternatively, that costs be in the cause. Claimant’s Submissions 1. On whether stay should be granted the Claimant submits to the contrary. It asserts that the Respondent’s action of initiating negotiations on settlement and later filing this application demonstrates bad faith and disentitles the Respondent to the equitable relief of stay. On extension of time the Claimant submits that the Respondent has failed to demonstrate any justifiable circumstances warranting the exercise of that discretion. Reliance is placed on Rule 18 of the Employment and Labour Relations Court (Procedure) Rules, which permits extension of time only where circumstances justify. The Claimant further submits that the intended appeal is not arguable, concerns an award arising from a lawful collective bargaining agreement, and is intended only to delay satisfaction of the judgment. It asserts that the Applicant “went to sleep” on the process despite being aware of the proceedings and that its indolence should not be rewarded. 2. On whether the notice of appeal already lodged should be deemed as duly filed and served, the Claimant submits that the Applicant has not laid a proper basis for enlargement of time and, consequently, the Notice of Appeal lodged outside the prescribed period should not be validated. It asserts that the Court should not exercise its discretion in favour of a litigant whose conduct demonstrates lack of diligence and bad faith. Consequently, the Claimant urges the court to dismiss the application with costs. Disposition 1. The motion is unmerited for the reason the Respondent has been indolent. Initially it seems there was to be a settlement and the application for extension of time is made in order to reward the indolent party who has been sleeping on its right. The Applicant ought to have owned up it could not pay and make the motion at the appropriate time instead of waiting to be prompted by efforts to execute and realise the judgment. Motion is dismissed with costs to the Claimant. It is so ordered. **Dated this 30th day of July 2026 and delivered on 31st July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**