[2025] KEELRC 1932 (KLR)
The court found that it lacked jurisdiction to grant leave to appeal out of time to the Court of Appeal, as such leave must be sought from the appellate court in accordance with the Court of Appeal Rules and relevant statutory provisions. The respondent failed to file a notice of appeal or an appeal within the...
Source-derived case information.
- Citation
- [2025] KEELRC 1932 (KLR)
- Parties
- Applicant: Baldwin Mwanyalo Nyambu; Respondent: Consolbase Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 63 of 2019
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application dismissed with costs to the claimant
- Judges
- M Mbarũ
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Jurisdiction of Court, Appeal Procedure
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Baldwin Mwanyalo Nyambu
Applicant
Consolbase Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the respondent is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the court has jurisdiction to grant leave to appeal out of time to the Court of Appeal.
- 3 Whether the application for stay and leave to appeal out of time is merited.
Ratio Decidendi
The court found that it lacked jurisdiction to grant leave to appeal out of time to the Court of Appeal, as such leave must be sought from the appellate court in accordance with the Court of Appeal Rules and relevant statutory provisions. The respondent failed to file a notice of appeal or an appeal within the prescribed timelines, and the application for stay of execution was not supported by any substantive steps towards lodging an appeal. The court further held that the Employment and Labour Relations Court (Procedure) Rules do not empower it to extend time for appeals to the Court of Appeal. Consequently, the application for stay of execution and leave to appeal out of time was...
Court Disposition
application dismissed with costs to the claimant
Orders
- The application dated 26 March 2025 is dismissed.
- The respondent shall bear the costs of the application.
Full Case Text
Judgment text and source record
30 paragraphs
Nyambu v Consolbase Limited (Cause 63 of 2019) [2025] KEELRC 1932 (KLR) (30 June 2025) (Ruling)
Neutral citation: [2025] KEELRC 1932 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Cause 63 of 2019
M Mbarũ, J
June 30, 2025
Between
Baldwin Mwanyalo Nyambu
Claimant
and
Consolbase Limited
Respondent
Ruling
1. The respondent, Consolbase Limited, filed an application dated 26 March 2025, under the provisions of Rules 18, 21, 45 and 8- pf the Employment and Labour Relations (Procedure) Rules, seeking orders that there be a stay of execution of the judgment delivered on 31 January 2025, pending the hearing of the intended appeal. The respondent is also seeking leave to appeal out of time and to treat the Notice of Appeal dated 24 March 2025 as having been filed within time.
2. The application is supported by the affidavit of Sauda Said, the administrator and human resources manager, who states that judgment was delivered herein on 31 January 2025 and the court granted a 30-day stay of execution. The time has lapsed, and being aggrieved, the respondent wishes to file an appeal to the Court of Appeal and therefore seeks leave to file the appeal out of time. There is a good and arguable appeal, and unless the order of stay of execution is granted, it will be rendered nugatory.
3. Sauda Said avers in the affidavit that the respondent is ready and willing to comply with the conditions granted by the court pending the hearing and determination of the appeal. There is a Notice of Appeal dated 24 March 2025 seeking to set aside the judgment herein, and unless an order of stay is granted, the respondent shall suffer irreparable loss and damage.
4. The claimant filed his Replying Affidavit and states that the current application is an abuse of court process and should be dismissed with costs. There is no authority from the deponent to support the application through a company resolution.
5. The claimant asserts that he filed his claim in 2019 after his summary dismissal. Following the delivery of judgment on 31 January 2025, the court granted 30 days for an appeal, which lapsed, and a notice was issued to comply with the judgment. No appeal has been filed, and where the respondent was required to file one, there has been no compliance with Rule 77(2) of the Court of Appeal Rules.
6. The claimant states that he has since submitted a bill of costs and served the respondent, who agreed to tax the costs by consent at Ksh. 000. The orders sought are unfounded, and the court lacks the jurisdiction to entertain an application for leave to file an appeal out of time.Both parties attended and opted to rely on the filed affidavits.
Determination 7. The respondent is seeking a stay of execution of the judgment delivered on 31 January 2025, pending the hearing and determination of the intended appeal, and also seeking leave to appeal out of time.
8. The respondent acknowledges that upon delivery of judgment herein on 31 January 2025, the court granted a 30-day stay of execution.
9. Following the court's order on 31 January 2025, the parties had a right of appeal under section 17 of the Employment and Labour Relations Court Act. The court granted a stay of execution to enable the parties to assert their rights.
10. No Notice of Appeal was filed, nor was any appeal filed to the Court of Appeal.
11. The applicant's request to stay execution pending the hearing and determination of the intended appeal has not been realised. The intention to appeal remains bare.
12. On the second limb of the application seeking leave to file an appeal out of time, leave to appeal relates to situations where it is not automatic or as of right to appeal to the Court of Appeal.
13. Where the right to appeal to the Court of Appeal is not secured within the timelines specified under Section 17 of the Employment and Labour Relations Court Act, read together with the Court Rules, leave to file the appeal out of time should be granted to the appellate court. The respondent has sought to rely on Rule 18 of the Employment and Labour Relations Court Procedure. However, these rules apply only to appeals from subordinate courts to the court. Leave to file an appeal out of time concerning a court's judgment must comply with the Court of Appeal rules, as held in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR and the Supreme Court Decision in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR.
14. Therefore, in this case, the court finds no justified reasons to stay the execution of the judgment, and there is also no jurisdiction to extend the time to file an appeal to the Court of Appeal out of time.
15. Accordingly, the application dated 26 March 2025 is without merit and is hereby dismissed, with the respondent to bear the costs.
DELIVERED IN OPEN COURT AT MOMBASA THIS 30TH DAY OF JUNE 2025. M. MBARŨJUDGEIn the presence of:Court Assistant: Japhet……………………………………………… and ………………….………………………2