[2024] KEELRC 1803 (KLR)

Mainga v Steel Structures Limited (Miscellaneous Cause E139 of 2023) [2024] KEELRC 1803 (KLR) (5 July 2024) (Ruling)

Neutral citation: [2024] KEELRC 1803 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Miscellaneous Cause E139 of 2023

NJ Abuodha, J

July 5, 2024

Between

Jeremiah Mutinda Mainga

Applicant

and

Steel Structures Limited

Respondent

Ruling

1. The Appellant filed application dated 26th June, 2023 under Under Section 3A, Section 79 of the Civil Procedure Act, Order 42 and Order 50 Rule 1 of the Civil Procedure Rules seeking for orders of the court to grant the Applicant/Intended Appellant leave to file out of time, an appeal against the judgement in CMEL CAUSE NO 157 OF 2019.

2. The application was supported by the Affidavit of Jeremiah Mutinda Mainga the Applicant/Intended Appellant herein.

3. The Applicant averred that the Judgement was dated 8/4/2022 and signed by Hon. D.M. Kivuti. However the same was delivered more than a year later by a different Magistrate being Hon. Opande on 26th April 2023.

4. The Applicant averred that the parties were unable to retrieve a typed copy of the judgement despite making repeated follow-ups in the concerned registries and the same was only availed on the 20th of June 2023.

5. The Applicant averred that the typed copy of the judgement was necessary for the preparation of a comprehensive memorandum of appeal.

6. The Applicant averred that the delay was not occasioned by his conduct hence he should not be made to suffer the consequences.

7. The Applicant averred that he has come to court at the earliest opportune moment in time.

8. The Applicant averred that he was likely to suffer irreparable harm should this Application be disallowed.

9. The Applicant averred that the Respondent will not suffer any prejudice should the Application be allowed.

10. In reply the Respondent filed its Replying Affidavit sworn on 25th December, 2023. The Respondent opposed the Applicant’s application and averred that the said application was an abuse of the court process and should not be allowed.

11. The Respondent averred that the application was merely an afterthought solely meant to delay the course of justice and litigation must come to an end as the Applicant's application was frivolous and vexatious and was meant to annoy.

12. The Respondent averred that the Applicant's application was purely aimed at prejudicing and delaying the execution process herein.

13. The Respondent averred that the judgment was delivered on the 8th of April 2023 and the application filed on the 26th of June 2023 Eighty One (81) days after judgment without any justification and/or reason and no grounds had been advanced by the Applicant for failure to file the memorandum of appeal in time.

14. The Respondent averred that there is no evidence for request for proceedings to demonstrate intention to file an appeal against the judgment delivered on the 8th of April 2023.

PARA 15. The Respondent averred that the proceedings was sufficient expression of an intention to file an appeal yet the Applicant has not shown any grounds which he seeks to challenge the findings of Honourable D. M. Kivuti, Principal Magistrate. 16. The Respondent averred that the Applicant has failed to show sufficient cause why the court should exercise its discretion in his favour by allowing the said application whileno proceedings has been applied for and no memorandum of appeal has been filed.

17. The Respondent averred that it is not enough for the Applicant to aver that he will suffer irreparable loss and prejudice unless the present application is allowed. It has to be shown in a detailed manner how that substantial loss will be occasioned.

18. The Application was dispensed of by written submissions.

DETERMINATION 19. I have considered the pleadings and submissions filed by the parties herein and I proceed to analyse them as follows.

20. Rule 8(1) & (2) of the Employment and Labour Relations Court (Procedure) Rules 2016 provides as follows:-“(1)where any written law provides for an appeal to this Court, an appellant shall file a memorandum of appeal with the Court within the time specified for that appeal under the written law.(2) where no period of appeal is specified in the written law under paragraph (1), an appeal shall be filed within thirty days from the date the decision was delivered.”

21. Section 79G of the Civil Procedure Act provides for leave to file out of time as follows:“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that 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.

22. Furthermore, Section 95 provides of the Civil Procedure Actstates that: -Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

23. When it comes to the grounds of leave to file out of time, the Applicant relies on being unable to retrieve and/or get a copy ofthe judgement despite making repeated follow ups in the concerned registries and the same was only availed on 20th June, 2023.

24. The Respondent on the other hand stated that the Applicant’sApplication had no merit as it had not given a good reason why he was seeking the orders to file out of time when no proceedings had been applied for to demonstrate the intention of filing an intended appeal.

25. The proviso to Section 79G of the Civil Procedure Act providesas follows:-“provided that 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.”

26. In Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi, theCourt of Appeal held that:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.”

27. Accordingly, for purposes of determining whether the applicantis entitled to the discretion of this Court, I have considered the application for extension of time to appeal under the following parameters:(a)whether there is a good and reasonable explanation for the delay;(b)whether the application has been brought without undue delay;(c)whether the proposed appeal is arguable, and(c)whether any prejudice will be suffered by Respondent

28. In respect of the first and second prerequisites, the Applicantaverred that the Judgement was dated 8/4/2022 and signed by Hon. D.M. Kivuti. However the same was delivered more than a year later by a different Magistrate being Hon Opande on 26th April 2023 and the same was only availed on the 20th of June 2023. The Applicant equally attached a copy of the dated Judgement as well email correspondences with the Executive Officer.

29. The foregoing assertions were never rebutted by theRespondent who instead stated that judgment was delivered on the 8th of April 2023 and the application filed on the 26th of June 2023.

30. On the third and fourth prerequisites, the court is of the viewthat the Applicant attached its Memorandum of Appeal which raises arguable issues and the court finds that the Respondent will not suffer any prejudice.

31. In the present case, the court is of the view that the Applicanthas attempted to explain the delay in filing an appeal, and has therefore given sufficient cause for not filing the appeal in time.

32. I do find that the applicant is entitled to pursue his appeal. I do allow the application dated 10th September, 2021 in the following terms:-a.Leave is granted to the applicant to file appeal out of time against the judgment delivered in Milimani CMEL CAUSE NO 157 OF 2019. b.The applicant to file and serve his Memorandum of Appeal within fourteen (30) days hereof.c.Execution of the Judgment/decree in Milimani CMEL CAUSE NO 157 OF 2019 is hereby stayed pending the hearing and determination of the appeal.

33. It is so ordered.

DATED THIS 5TH DAY OF JULY, 2024Abuodha Nelson JorumJudgeELRC Misc E139 OF 2023