[2018] KEELRC 1278 (KLR)
The court found that the respondent's application for leave to appeal out of time was filed over a year after the judgment and only after warrants of attachment were issued, indicating inordinate delay. The respondent failed to demonstrate any arguable grounds for appeal or specify what aspects of the judgment were...
Source-derived case information.
- Citation
- [2018] KEELRC 1278 (KLR)
- Parties
- Applicant: Beatrice Osebe & 5 Others; Respondent: Mills Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1672 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- DI Wasike
- Legal Topics
- Leave to Appeal Out of Time, Delay in Filing Appeal, Execution of Judgment, Interests of Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Osebe & 5 Others
Applicant
Mills Industries Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the respondent has provided sufficient reason for the delay in seeking leave to appeal out of time.
- 2 Whether the application for leave to appeal out of time is a device to delay or defeat the decree holder's right to the fruits of judgment.
- 3 Whether the respondent has demonstrated arguable grounds for appeal.
Ratio Decidendi
The court found that the respondent's application for leave to appeal out of time was filed over a year after the judgment and only after warrants of attachment were issued, indicating inordinate delay. The respondent failed to demonstrate any arguable grounds for appeal or specify what aspects of the judgment were being challenged. The court concluded that the application was frivolous and intended to delay or defeat the decree holder's right to enjoy the fruits of the judgment. Consequently, the application was dismissed with costs to the claimants.
Court Disposition
application dismissed with costs
Orders
- The application for leave to appeal out of time is dismissed with costs to the claimants.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CAUSE 1672 OF 2013
BEATRICE OSEBE & 5 OTHERS......................CLAIMANTS
VERSUS
MILLS INDUSTRIES LIMITED......................RESPONDENT
RULING
1. By a motion dated 30th August, 2017 the respondent sought leave of the court to appeal out of time against the judgement of the court passed on 12th February, 2016. The application was based on the grounds that the present firm of advocates took over the matter on or about April, 2017 and at that time no notice of appeal was filed as a result of oversight.
2. The applicant further stated that there was imminent threat of execution as the claimant had taken out warrants of attachment and sale and further instructed Ms Mbusara Auctioneers to proclaim the respondents goods. The applicant contended that the application raised traible issues and it was therefore in the interest of justice that the orders be granted.
3. This matter was heard on merit and the court rendered its judgement on 19th February, 2016. The decree holder drew and filed his bill of costs and the same was taxed and ruling delivered on 29th June, 2017.
4. On 28th March, 2017 the Deputy Registrar was informed that there was a new counsel on record and ordered that the counsel be served. The parties thereafter appeared before the Deputy Registrar on 19. 4.2017, 4. 5.2017 and 5. 5.2017. From the record, there is no indication that the new counsel on record for the respondent had any problem with the judgement and sought to appeal.
5. The warrants of attachment were issued on 28th August, 2017 and two days thereafter the respondent brought this application. From the sequence of events and considering that the judgement herein was delivered on 19th February, 2016 and the application herein filed on 30th August, 2017. Over one year later and immediately after the warrants of attachment were issued the court can only conclude that the application is not only inordinately late but a device to delay or defeat the decree holder’s right to the fruits of the court judgement.
6. The respondent contends it has an arguable appeal but has not in the supporting affidavit or by way of draft memorandum of appeal attempted to demonstrate what aspects of the judgement it is faulting and the points it intends to canvass on appeal.
7. The application is therefore found frivolous and is hereby dismissed with costs.
8. It is so ordered.
Dated at Nairobi this 9th day of August, 2018
Abuodha J. N.
Judge
Delivered at Nairobi this 9th day of August, 2018
Abuodha J. N.
Judge
In the presence of:-
................................................for the Claimant
...........................................for the Respondent.