https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2331

Mocam Security Services Ltd v Ochango (Miscellaneous Application E004 of 2026) [2026] KEELRC 2331 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2331 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kakamega Miscellaneous Application E004 of 2026 DN Nderitu, J July 30, 2026 Between Mocam Security Services Limited Applicant and Aggrey Nyongesa Ochango Respondent Ruling I. Introduction 1.In a Notice of Motion dated 11th March 2026 (the application) the Applicant is seeking for orders that -(i)Spent.(ii)This Honourable Court be pleased to grant leave for the Applicant to file and serve the Memorandum of Appeal out of time against the judgment delivered on 1st October 2025 in Kakamega Chief Magistrate’s Court Employment & Labour Relations Cause No. E027 of 2025;(iii)This Honourable Court be pleased to grant leave for the Applicant to file and serve the Record of Appeal out of time;(iv)Upon granting prayer (3) and (4) above, the time be named within which the said Memorandum and Record of Appeal be filed and the very grace period do operate as stay of execution;(v)Costs of this application be provided for. 2.The application is expressed to be founded on Article 50 of the Constitution, Rule 18 of the Employment and Labour Relations Court (Procedure) Rules, 2024, Sections 1A, 1B & 3A of the Civil Procedure Act, & Order 51 Rule 1 of the Civil Procedure Rules. It is based on the grounds on the face of it. 3.The application is supported with the affidavit of Sharon Jeruto Kosgey, the Managing Director of the Applicant, sworn on 11th March 2026 with several annexures thereto. 4.In response to the application, the Respondent swore a replying affidavit on 16th February 2026 with several annexures thereto. 5.By consent, the court directed that the application be canvassed by way of written submissions. Ms Kerubo for the Applicant filed written submissions dated 16th April 2026, while Mr. Were for the Respondent filed written submissions dated 17th April 2026. II. The Evidence 6.In the supporting affidavit, it is deposed that Judgment was delivered on 1st October 2025 in Kakamega CM ELRC Cause No. E027 of 2024 without the Applicant’s knowledge as its advocates on record then failed to notify of the date of judgment. It is averred that the Applicant only became aware of the judgment after instructing new advocates, following service of a notice of taxation dated 26th February 2026, whereupon it promptly commenced the process of seeking leave to appeal. 7.It is deposed that the delay in filing of the appeal was neither deliberate nor inordinate but is solely attributable to a lack of communication and knowledge of the delivery of the judgment. 8.The Applicant further contends that the intended appeal raises arguable issues of law and fact with high chances of success. It is further deposed that Rule 18 of the Employment and Labour Relations Court Rules, 2024 empowers the Court to extend time for filing appeals. It is deposed further that if the application is allowed the Respondent would suffer no prejudice incapable of compensation by costs and, that it is in the interests of justice that the Applicant be afforded an opportunity to exercise its right of appeal. 9.In the replying affidavit, the Respondent is opposed to the application, describing the same as an afterthought, made in bad faith, and an abuse of the court process. It is deposed that the Applicant has failed to provide a satisfactory explanation for its failure to file an appeal within the prescribed time, noting that the Applicant had advocates on record throughout the trial and ought to have diligently followed up on the progress of the case. 10.It is further deponed that the Applicant's assertion that its former advocates failed to notify of the judgment is unsupported. It is further stated that the Applicant's current advocates were instructed on 15th January 2026 yet, no explanation has been offered for the delay until 12th March 2026 when the instant application was filed. According to the Respondent, the delay of over five months is inordinate and unexplained. 11.It is further stated that the intended appeal is not arguable. It is deponed that the Applicant admitted before the trial court that it had not complied with the procedure on redundancy, had paid wages below the statutory minimum, failed to pay house allowance and, required the Respondent to work from 6.00 a.m. to 6.00 p.m. It is further stated that the Applicant cannot challenge the awards relating to leave, rest days and public holidays, having failed to produce the employment records required under Section 74(1)(c) and (f) of the Employment Act during the trial. 12.It is deposed that the Applicant has failed to satisfy the threshold for extension of time to file an appeal and the Court is urged to dismiss the application with costs. III. Submissions 13.Counsel for the Applicant urged the Court to exercise its discretion under Rule 18 of the Employment and Labour Relations Court Rules, 2024 and grant to the Applicant leave to appeal out of time. Counsel cited Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, wherein the Supreme Court held that extension of time is discretionary and depends on factors such as the reason for delay, absence of undue delay, prejudice to the other party or parties, and the circumstances of each case. Counsel further cited Thuita Mwangi v Kenya Airways Ltd [2003] eKLR and Leo Sila Mutiso v Rose Hellen Wangari Mwangi- Civil Application No. NAI.255 of 1997(unreported). The two decisions set out the considerations of the length of the delay, the explanation for the delay, the chances of success of the intended appeal and, the prejudice to the respondent. 14.Counsel submitted that although the application was filed about five months after delivery of the impugned judgment, the delay was satisfactorily explained in that the Applicant's former advocates failed to notify of the judgment. It is further argued that upon learning of the judgment through its current advocates, the Applicant promptly obtained the proceedings and filed the present application. Counsel argued that the application is seeking leave to appeal and is therefore not barred by Order 9 Rule 9 of the Civil Procedure Rules. 15.It is further submitted that mistakes by counsel should not be visited upon an innocent litigant. On this counsel cited Catherine Njuguna v Commercial Bank of Africa Ltd [2015] KECA 907 (KLR), and Maina v Mugiria [1983] KLR 78, wherein the courts emphasized that inadvertent mistakes by advocates should not defeat justice. 16.On the arguability of the intended appeal, counsel cited Gicharu v Waweru [2025] KEHC 2565 (KLR) and Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, wherein it was held that an arguable appeal is one that is not frivolous and deserves consideration by the appellate court. Counsel submitted that the attached draft memorandum of appeal raises bona fide issues concerning the trial court's findings on redundancy, computation of terminal dues, and the evidentiary burden under the Employment Act. It is argued that the Court is not required to determine the merits of the appeal at this stage but only to consider whether it raises arguable issues. 17.Counsel further submitted that the Respondent will suffer no prejudice incapable of compensation by costs if the leave is granted, whereas the Applicant stands to suffer substantial injustice if denied the opportunity to challenge the judgment. Counsel cited Kamlesh Mansukhalal Damki Patni v Director of Public Prosecution & 3 Others [2015] eKLR and Okwayo v Mwebi [2025] KEHC 4435 (KLR) on the principles that courts should promote substantive justice, safeguard the constitutional rights to access justice and a fair hearing, and lean in favour of determining disputes on their merits. 18.Counsel therefore urges the Court to allow the application with costs. 19.On the other hand, Counsel for the Respondent submitted on the issues –Whether the application is properly before this court; and, Whether the Applicant has met the threshold for granting extension to appeal out of time. 20.It is submitted that the application is incompetent as the Applicant's current advocates came on record after judgment without complying with Order 9 Rule 9 of the Civil Procedure Rules. Citing William Charles Fryda v Assumption Sisters of Nairobi Registered Trustees & 3 Others [2017] eKLR, Stephen Mwandware Ndighila v Steel Makers Ltd [2022] eKLR, Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi [2012] eKLR, and The Council of Jomo Kenyatta University of Agriculture and Technology v Joseph Mutuura Mbeera & Others [2015] eKLR, Counsel submitted that that an advocate coming on record after judgment must obtain leave or file the requisite consent, and that Article 159 of the Constitution is not a cure for non-compliance with mandatory procedural requirements. 21.On the merits of the application, Counsel submitted that although Rule 18 of the Employment and Labour Relations Court (Procedure) Rules, 2024 empowers the Court to enlarge time, extension is an equitable and discretionary remedy. Reliance is placed on Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, Silverbrand v County of Los Angeles, and Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR, which emphasize that an applicant must satisfactorily explain the delay, demonstrate diligence, and show that the discretion should be exercised in its favour. 22.Counsel argued that the delay of approximately five months and two weeks was inordinate and inadequately explained. It is submitted that the Applicant adduced no evidence that it sought updates from its former advocates and the former advocates did not swear an affidavit admitting failure to notify the Applicant of the judgment. Although the current advocates were instructed on 15th January 2026, no explanation was given for waiting a further two months before filing the instant application. Counsel therefore contends that the Applicant failed to provide a full and satisfactory explanation for the delay. 23.Counsel further submitted that the intended appeal lacks merit in that the Applicant admitted at trial that it had not complied with the procedure on redundancy, had paid wages below the prescribed minimum, had not paid house allowance, and required the Respondent to work extra hours without pay. It is also argued that the Applicant cannot challenge the awards for leave and for rest days and public holidays, having failed to produce the statutory employment records as required under Section 74(1)(e) and (f) of the Employment Act. 24.Finally, Counsel submitted that granting leave to the Applicant to appeal out of time would prejudice the Respondent, who has already taken steps to realize the fruits of the judgment, including filing of a bill of costs and proceeding to taxation. 25.The Court is therefore urged to find that the application is unmeritorious and dismiss the same with costs. IV. Analysis & Determination 26.The court has carefully read and considered the application, the affidavit in support, the replying affidavit, and the submissions by Counsel for both parties. The following issues commend themselves to the court for determination – Whether the application is competent; Whether the Applicant is deserving of an extension of time to lodge an appeal out of time as prayed; Whether an order for stay of execution should issue, and, costs? V. Competency 27.The Respondent contends that the application is incompetent as the counsel for the Applicant came on record without leave of court or the consent of the previous advocate on record. 28.The court agrees by the reasoning of the Court of Appeal in Tobias M. Wafubwa v Ben Butali [2017] eKLR wherein the court held that – Once a judgment is entered, save for matters such as applications for review or execution or stay of execution inter alia, an appeal to an appellate court is not a continuation of proceedings in the lower court, but a commencement of new proceedings in another court, … Parties should therefore have the right to choose whether to remain with the same counsel to engage other counsel on appeal without being required to file a Notice of Change of Advocates or to obtain leave from the concerned court to be placed on record in substitution of the previous advocate. 29.The proceedings in the lower court came to an end and the present application is not a continuation of the said trial. The court finds and holds that counsel for the Applicant is properly on record and the instant application is competent and properly before this court for hearing and determination. VI. Leave to Appeal Out of Time 30.This limb of the application is based on Section 79G of the Civil Procedure Act which provides that –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 (Emphasis added). 31.Rules 12 & 18 of Employment and Labour Relations Court (Procedure) Rules, 2024 (The Rules) mirror Section 79G of the Civil Procedure Rules, providing that –12.(1)Where a written law provides for an appeal to the Court, an appellant shall file a memorandum of appeal with the Court within the time specified under that written law.(2)Where an appeal is from a magistrate’s court or where no period of appeal is specified in the written law referred to in sub-rule (1), the appeal shall be filed within thirty days from the date the decision is delivered.18.The Court may, if circumstances justify, extend the time prescribed for the filing of an appeal or any document relating to an appeal. (Emphasis added) 32.The Supreme Court in Nicholas Kiptoo Korir Salat v IEBC & 7 others (supra) laid down the principles that a court should consider in exercising the discretion to extend the time for filing an appeal as follows –1)Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court.2)A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3)Whether the court should exercise the discretion to extend time is a consideration to be made on a case-by-case basis.4)Whether there is a reasonable reason for the delay.5)The delay should be explained to the satisfaction of the Court; Whether there will be any prejudice suffered by the respondents if the extension is granted;6)Whether the application has been brought without undue delay, and7)Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 33.It was argued and submitted for the Respondent that the instant application has been filed after inordinate delay. It was contended that the Applicant was all along aware of the judgement as the Applicant failed to prove that it had sought an update from its counsel then on record. The said advocate did not file an affidavit in support of that position. It was further argued that while the Applicant instructed a new advocate in January 2026, there is no explanation as to why it took the said advocate over two months before filing the instant application in March 2026. 34.As stated above, the Applicant attributed the delay in filing of an appeal to having become aware of the judgment late, as the advocate failed to inform it of the judgment. It was stated that the Applicant only became aware of the judgement after a notice of taxation was served in February 2026. This prompted the Applicant to appoint a new counsel to file the instant application. 35.The court has perused the application and noted that the impugned judgment was delivered on 1st October 2025. The application was filed five months and 11 days after delivery of the judgment on 12th January 2026. 36.The court observes from the record that the judgment was delivered in the absence of the Applicant’s counsel. The Applicant has explained that the delay in filing the appeal was occasioned by the lack of knowledge that a judgment had been delivered. The Applicant thereafter instructed a new counsel who filed the instant application. The court takes the view and holds that the delay is excusable as the same has been reasonably explained. In any event, the delay was not inordinate. 37.The court has also perused the draft memorandum of appeal and finds and holds that, prima facie, the same raises arguable issues and, as such, the Applicant has demonstrated that the intended appeal is not vexatious or frivolous and the same has a probability of success. 38.As to the prejudice that the Respondent may suffer if leave is granted for the Applicant to file an appeal out of time, the Respondent shall certainly have an opportunity to respond to the appeal once filed. Further, if the intended appeal ultimately fails, the Respondent shall be compensated by way of costs and interest on the decretal sum and costs. The court shall also secure the decretal sum in the following part of the ruling. VII. Stay of Execution 39.The Applicant further seeks stay of execution pending the hearing and determination of the intended appeal. The Respondent did not respond to this prayer. Counsel for both parties did not submit on the same. 40.The jurisprudence on the grant for stay of execution pending appeal is now somehow settled. These applicable principles are provided for under Order 42 Rule 6(2) of the Civil Procedure Rules as follows –No order for stay of execution shall be made under subrule (1) unless—a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 41.This court is enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. The court is bound to rendering substantive justice as opposed to following strict rules of procedure and restrictive interpretation of the law or mere technicalities. 42.Section 1A (2) of the Civil Procedure Act provides that “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective”. Under Section 1B some of the aims of the said objectives are to ensure – “the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties." 43.As to what substantial loss entails, it was observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR that – This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal. The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. 44.In Butt -vs Rent Restriction Tribunal (1982) KLR 417, the Court of Appeal gave guidance on how a court should exercise its discretion in an application for stay of execution and held that –1.the power of the court to grant or refusal an application for a stay of execution is a discretion of power. The discretion should be exercised in such a way as not to prevent an appeal.2.The general principle is granting or refusing a stay is: If there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion(sic) (trial court judgement).3.A judge should not refuse a stay if there is a good ground for granting it merely because in his opinion a better remedy may be available to the applicant at the end of the proceedings.4.The court, in exercising its powers under Order XLI rule 4 (2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered with cause the order for stay of execution to lapse. 45.A copy of the judgment intended to be appealed is attached to the application. The judgment ordered that the Respondent be paid Notice pay (Kshs15,722); Compensation for unlawful termination (Khs78,610); Underpayment (Kshs298,836); Rest Days (Kshs150,931); Unpaid Leave (Kshs63,492); Pubic holidays (Khs17,294); Certificate of service; costs and interest. 46.Based on the draft memorandum of appeal, the intended appeal is intended to overturn the entire judgment. The intended appeal, going by the annexed draft memorandum of appeal, prima facie, raises arguable issues relating to the reliefs awarded. In my considered view, denying the stay of execution shall render the intended appeal nugatory. 47.Taking all relevant factors into account and, in order not to render the intended appeal nugatory and to give effect to the overriding objectives of rendering substantive justice, the court shall grant the stay of execution pending the filing, hearing, and determination of the intended appeal on the condition that security for the due performance of the decree be provided. 48.The court holds that delay in execution of a decree is not a denial of the Applicant’s right to enjoy the fruits of the judgement. VIII. Orders 49.The court orders that –(i)The application dated 11th March 2026 is merited and is hereby allowed as hereunder.(ii)The Applicant shall file and serve a record of appeal within 30 days of this ruling.(iii)The Applicant shall deposit the entire decretal sum of Kshs624,885/= in court within 30 days of this ruling.(iv)In default of (ii) or (iii) above the leave and stay shall automatically lapse.(v)No order as to costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 30TH DAY OF JULY 2026.....................................DAVID NDERITUJUDGE