https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1496

Great Lakes v Mdali (Miscellaneous Application 134 of 2025) [2026] KEELRC 1496 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1496 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Miscellaneous Application 134 of 2025 K Ocharo, J May 28, 2026 Between Great Lakes Applicant and Francis Mdali Respondent Ruling 1.By an application herein dated 13th November, 2025, the Applicant seeks the following orders;a.That the matter herein be certified as urgent, service be dispensed with, and the same be heard ex parte at the first instance.b.That the Honourable Court be pleased to stay execution of the judgment of 18th April 2024 issued by Hon M L Nabibya (SPM) in Mombasa ELRC E246 of 2020: Francis Mdali vs Greatlakes pending the hearing and determination of this Application.c.That the Honourable Court be pleased to grant the Applicant an extension of time within which to file its appeal against the Judgment of the Honourable M L Nabibya delivered on 18th April 2024 in Mombasa ELRC E246 of 2020: Francis Mdali Vs Greatlakes.d.That the Honourable court be pleased to stay execution of the judgment of 18th April 2025 issued by Hon M L Nabibya in Mombasa ELRC E246 of 2020: Francis Mdali Vs Great Lakes pending hearing and determination of the intended appeal.e.That the costs of this Application be provided. 2.The Applicant states that judgment in Mombasa ELRC E246 of 2020, Francis Mdali v Great Lakes, was delivered on 18th April 2024 in favour of the Respondent, awarding him KShs 1,880,908, together with costs and interest. The Applicant contends that it was not informed of the judgment by its former advocates, C.O. Tolo & Company Advocates, and only became aware of it on 31st May 2024, when Thanu Auctioneers proclaimed two of its vehicles in execution of the decree. 3.The Applicant states that it instructed its advocates to file an appeal, only to discover later that no appeal had been lodged. It further explains that it instructed the firm of Waziri Omollo & Company Advocates, who subsequently filed an objection to the proceedings on the ground that the proclaimed vehicles belonged to Great Lakes Trans (K) Limited rather than to Great Lakes, but the application was dismissed on 16th October 2025. 4.The Applicant therefore seeks an enlargement of time to file an appeal out of time and a stay of execution, arguing that the delay was caused by the mistake and lack of communication by its former advocates, which should not be visited upon it. 5.The Applicant maintains that it has an arguable appeal with a high likelihood of success, that it would suffer substantial and irreparable loss if the vehicles are sold at public auction, and that the intended appeal would be rendered nugatory. It further contends that the Respondent would suffer no prejudice if the application is allowed, as any loss can be compensated by costs. 6.The Respondent opposes the application in its entirety and contends that it is belated, misconceived, incompetent, and an abuse of the court process. The Respondent further argues that the application is merely a calculated attempt to delay his enjoyment of the fruits of a lawful judgment delivered on 18th April 2024 in his favour. 7.The Respondent further contends that the application is fatally defective for several reasons. First, he argues that the application was filed by a firm of advocates that was not properly on record at the time of filing, because the consent allowing the new advocates to come on record was dated 14th November 2025, whereas the application itself had already been filed on 13th November 2025. 8.Secondly, the Respondent argues that the supporting affidavit was sworn by a person who has not exhibited authority to swear the affidavit on behalf of the Applicant company. 9.The Respondent states that the Applicant actively participated in the proceedings before the trial court from the outset until judgment was delivered, and thereafter also participated in post-judgment proceedings without ever indicating an intention to appeal. 10.He explains that after execution commenced, the Applicant filed objection proceedings through Waziri Omollo Advocates, alleging that the proclaimed vehicles belonged to Great Lakes Trans (K) Limited rather than the judgment debtor. 11.However, the objection proceedings were dismissed on 16th October 2025 after the court found that the objector had failed to establish a distinct legal or equitable interest in the proclaimed vehicles. The Respondent therefore contends that the present application is merely another attempt by the same party to challenge the same judgment “through the back door” following the failure in the objection proceedings. 12.The Respondent further submits that the Applicant has always been represented by counsel and has always been aware of the proceedings and the judgment. He argues that the allegations that the Applicant was unaware of the judgment or that its advocates failed to inform it are misleading and unsupported. 13.According to the Respondent, the Applicant deliberately chose not to file an appeal within the statutory period and instead pursued objection proceedings as a strategy to obstruct execution. He maintains that the delay in filing the intended appeal is inordinate and inexcusable, intended only to frustrate the enforcement of the judgment. 14.The Respondent also argues that the Applicant has not demonstrated any arguable appeal or satisfied the threshold for the grant of a stay of execution. He contends that there is no proper appeal before the court and therefore no legal basis for a stay pending appeal. Further, he maintains that the judgment and subsequent ruling were lawfully and properly delivered after the Applicant had been afforded a full opportunity to participate and to defend itself. Applicant’s written submissions 15.The Applicant relies on Order 79G of the Civil Procedure Act and submits that the court has discretion to admit an appeal out of time where sufficient cause is shown. Reliance is also placed on Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR. 16.The Applicant submits that although the delay is significant, it has been sufficiently explained as arising from a breakdown in communication between the Applicant and its former advocates, who failed to file the appeal despite instructions having been issued. Further, the mistake of counsel should not be visited upon a litigant, and it would be in the interests of justice to allow the appeal to be filed out of time. 17.The Applicant further submits that it has an arguable appeal with high chances of success. It contends that the trial court awarded the Respondent compensation and terminal dues without a proper legal or factual basis. In particular, the Applicant disputes the existence of an employer-employee relationship and challenges the awards for overtime, house allowance, leave days, and compensation for unfair termination. 18.The Applicant further submits that the Respondent would suffer no prejudice if the application is allowed, as any inconvenience can be compensated by costs. The Applicant relies on Mweu v Nyanzi (Miscellaneous Civil Application 178 of 2023) to buttress this submission. 19.On the prayer for stay of execution, the Applicant relies on Order 42 Rule 6(2) of the Civil Procedure Rules and submits that it has satisfied the conditions necessary for the grant of a stay. It argues that unless stay is granted, the Respondent will proceed with execution and attachment of its tools of trade, thereby occasioning substantial loss, disruption of business, and damage to its reputation. 20.The Applicant submits that the intended appeal would also be rendered nugatory if execution proceeds before the appeal is heard and determined. In support of this argument, reliance is placed on James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR. 21.The Applicant further argues that the application was filed without unreasonable delay after the present advocates were instructed in November 2025. On the issue of security, the Applicant submits that it is willing to comply with any reasonable conditions imposed by the court and notes that it has already deposited Kshs 1,000,000 with the judiciary pursuant to earlier court directions. 22.Lastly, the Applicant addresses the Respondent’s objection regarding the consent allowing the new advocates to come on record. The Applicant submits that although the application is dated 13th November 2025 and the consent is dated 14th November 2025, all the documents were filed on 17th November 2025 after the consent had already been executed by both the former and current advocates. Therefore, its advocates are properly on record. Respondent’s submissions 23.The Respondent submits that the Applicant’s Notice of Motion dated 13th November 2025, seeking a stay of execution and an extension of time to file an appeal, is wholly unmerited, incompetent, and an abuse of the court process. The Respondent argues that the Applicant intentionally failed to disclose that it had already filed objection proceedings before the trial court in relation to the same judgment, and only approached the present court after those proceedings were dismissed. The application is therefore an attempt to “take another bite of the cherry” after unsuccessfully challenging execution through objection proceedings. 24.The Respondent further submits that the Applicant has always been represented by counsel, has always been aware of the proceedings, and consciously failed to lodge an appeal within time. There is no proper appeal before the court; therefore, there is no legal basis for the grant of a stay of execution. 25.On the applicable principles, the Respondent submits that the grant of stay of execution and extension of time are discretionary remedies which must only be granted to deserving parties who satisfy the legal threshold. Reliance is placed on Bartilol & 3 Others v Bartilol & Another (Civil Application 001 of 2024) [2024] KECA 607 (KLR) (24 May 2024) (Ruling). 26.The Respondent also cites several authorities in support of the opposition to stay of execution and extension of time, including JK Industries v Kenya Commercial Bank Ltd & Another [1987] eKLR, Madhupaper International Limited v Kerr [1985] KLR 840, Giella v Cassman Brown & Co. Ltd [1973] EA 358, and E.A. Industries Ltd v Trufoods Ltd [1972] EA 420. 27.On jurisdiction, the Respondent relies on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment) and submits that jurisdiction is fundamental and must be determined at the earliest opportunity. The Respondent argues that the court lacks jurisdiction to entertain an application for an extension of time after the same judgment had already been unsuccessfully challenged by the same party through objection proceedings. 28.In conclusion, the Respondent submits that the Applicant has failed to satisfy the threshold for the grant of a stay of execution and extension of time. The Respondent contends that granting the orders sought would amount to sanctioning abuse of the court process and undermining a valid judgment. Analysis and determination Issuesi.Whether the Applicant has established sufficient cause to warrant extension of time to file an appeal out of time; andii.Whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal. 29.On the first issue, the applicable law is Order 79G of the Civil Procedure Act, which requires appeals from subordinate courts to be filed within thirty days but grants the court discretion to admit an appeal out of time where sufficient cause is shown. 30.The Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), cited the case of United Arab Emirates v Abdelghafar & others 1995 IRLR 243, where the Employment Appeal Tribunal laid down four principles to be observed when exercising the discretion to extend time, thus:“In the light of the guidance contained in these authorities, it is possible to state, with reasonable precision, the principles which govern the exercise of the Appeal Tribunal’s discretion to extend time and to identify those factors regarded as relevant.The grant or refusal of an extension of time is a matter of judicial discretion to be exercised not subjectively, at whim, or by a rigid rule of thumb, but in a principled manner in accordance with reason and justice. The exercise of the discretion is a matter of weighing and balancing all the relevant factors which appear from the material before the Appeal Tribunal. The result of an exercise of a discretion is not dictated by any set factor. Discretions are not packaged, programmed responses. As Sir Thomas Bingham MR pointed in Costellow v Somerset CC (supra) at 959C, time problems arise at the intersection of two principles, both salutary, neither absolute.“… The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met…”The second principle is that:“…a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of a procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. …” 31.The court is required to consider, among other factors, the length of the delay, the reason for it, the potential merits of the intended appeal, and the prejudice likely to be suffered by the respondent. 32.In the present matter, judgment was delivered on 18th April 2024, while the present application was filed in November 2025, approximately one year and six months later. The delay is therefore inordinate and requires a satisfactory explanation. The Applicant attributes the delay to its former advocates' failure to notify it of the judgment and to lodge the intended appeal, despite allegedly having issued instructions. 33.However, following delivery of the judgment, the Applicant actively participated in post-judgment proceedings, including objection proceedings filed on 5th June 2024 to challenge execution. Those proceedings were heard inter partes and culminated in a ruling delivered on 16th October 2025, dismissing the objection application. The Applicant therefore remained aware of the proceedings and the execution process throughout. 34.Mistakes by counsel should not ordinarily be visited upon litigants. However, such mistakes must still be candidly explained and supported by material demonstrating the litigant's diligence. In the present case, no correspondence, instructions, or other documentary material has been placed before this Court to demonstrate any follow-up on the intended appeal between May 2024 and November 2025. 35.Further, the Applicant chose to pursue objection proceedings rather than promptly seeking an extension of time to appeal the judgment. The present application was brought only after the objection proceedings failed. In these circumstances, the Respondent’s contention that the application is an afterthought intended to delay execution is not without basis. 36.The Applicant also attached a draft memorandum of appeal. While an applicant is not required to demonstrate that the intended appeal will succeed, it must show that the appeal is not frivolous. The intended appeal raises issues that are arguable and merit appellate consideration. However, the existence of an arguable appeal alone cannot cure inordinate and insufficiently explained delay. 37.The court must also balance the prejudice likely to be suffered by either party. The Respondent obtained judgment in April 2024 after participating in a full hearing and is entitled to enjoy the fruits of that judgment. Litigation must come to an end. Granting an extension of time after prolonged delay and after unsuccessful objection proceedings would occasion further delay in the realisation of the decree. In fact, to grant an extension would be against public policy. 38.In the upshot, the Applicant’s application for extension of time to file an appeal out of time is destitute of merit. It is hereby declined. Having arrived at this conclusion, I find it unnecessary to proceed to the second identified issue. 39.The Applicant’s application is hereby dismissed with costs. 40.Orders accordingly. READ, SIGNED AND DELIVERED THIS 28TH DAY OF MAY 2026.OCHARO KEBIRAJUDGE