https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1723

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **MISCELLAENOUS APPLICATION NO. E002 OF 2026** PRIDE KINGS SERVICES LIMITED............…………………..**APPLICANT** **VERSUS** LILIAN AKOTH OWINO......................……………………**RESPONDENT** **RULING** 1. The Applicant has instituted this suit via an application dated 2nd February 2026 seeking leave to lodge an appeal out of time against the judgment by Hon. F. M. Rashid, SPM delivered on 25th November 2025 in **Kisumu MCELRC Cause No. E198 of 2024**. The Applicant further seeks an order of stay of execution of the said judgment pending the hearing and determination of the intended appeal, together with costs of the application. 2. The application is premised on the seven grounds set out on its face and is supported by the affidavit of Mr. Fredrick Mashuke Okello, the Applicant’s Human Resource Manager. The Applicant avers that the judgment was delivered in the absence of its Counsel and that it only became aware of the decision on 2nd February 2026 when Counsel for the Respondent demanded payment of the decretal sum. The Applicant states that it is dissatisfied with the judgment and intends to challenge it on appeal, which it contends has high chances of success. It further asserts that the present application was filed without undue delay, being only eleven days after the expiry of the statutory period for filing an appeal. The Applicant expresses its willingness to furnish the Court with security for the due performance of the decree and contends that the balance of convenience favours the grant of the orders sought. It further argues that unless the application is allowed, the intended appeal will be rendered nugatory. 3. The application is opposed through a replying affidavit sworn by the Respondent on 11th February 2026. The Respondent deposes that the application is a mere afterthought intended to delay her enjoyment of the fruits of a lawful judgment. She contends that the Applicant has failed to satisfy the legal requirements for extension of time to appeal. Nonetheless, the Respondent states that she would not oppose the grant of leave provided the Applicant pays thrown-away costs of Kshs. 30,000/-. She further submits that the existence of arguable grounds of appeal, by itself, does not warrant the grant of an order for stay of execution. In the event that the Court is inclined to allow the application, the Respondent urges that such leave be conditional upon payment of Kshs. 150,000/- from the decretal sum and the deposit of the balance of Kshs. 133,435/- in a joint interest-earning account operated in the names of the parties’ advocates. 4. In rejoinder, the Applicant filed a further affidavit to which it annexed a draft Memorandum of Appeal. 5. The application was canvassed by way of written submissions. Applicant’s Submissions 1. The Applicant submits that it has satisfied the principles governing the exercise of the Court’s discretion to extend time for filing an appeal. In support of this position, it relies on the case of **Mwangi *v* Kenya Airways Ltd [2003] eKLR**, where the Court identified the relevant considerations as the length of the delay, the reasons for the delay, the arguability of the intended appeal, the degree of prejudice likely to be suffered by the respondent, the importance of compliance with prescribed timelines, and the effect of the extension on the administration of justice and public interest if any. 2. On the question of delay, the Applicant submits that the present application was lodged only eleven days after the lapse of the statutory period prescribed under section 79G of the Civil Procedure Act. It points out that judgment was delivered on 24th November 2025 and that the instant application was filed on 2nd February 2026, excluding the period between 21st December and 13th January when time does not run. 3. Regarding the reasons for the delay, the Applicant contends that the same was occasioned by circumstances beyond its control, namely the failure to receive prompt communication regarding the delivery of the judgment. It further submits that upon becoming aware of the judgment, it acted expeditiously in filing the present application, thereby demonstrating the absence of any intention to obstruct or delay the course of justice. 4. As to the prospects of success of the intended appeal, the Applicant argues that the draft Memorandum of Appeal discloses serious and arguable issues, including whether the Trial Court properly evaluated the evidence before it and whether the remedies awarded were justified in the circumstances. 5. On the question of prejudice, the Applicant submits that any inconvenience likely to be suffered by the Respondent can adequately be compensated by an award of costs. Conversely, it contends that it stands to suffer substantial injustice if denied an opportunity to challenge the impugned judgment on appeal. 6. With respect to the prayer for stay of execution, the Applicant submits that it is ready and willing to deposit the entire decretal sum together with costs in court as security for the due performance of the decree. It therefore urges the Court to exercise its discretion in its favour and grant the orders sought. Respondent’s Submissions 1. The Respondent submits that the Court ought to be guided by the principles governing extension of time as enunciated in the case of **Nicholas Kiptoo Arap Korir Salat *v* Independent Electoral *&* Boundaries Commission (IEBC) *&* others [2014] eKLR**, as follows; the length of the delay, the reasons for the delay, the prejudice likely to be suffered by the Respondent and the chances of the intended appeal succeeding. 2. The Respondent submits that applying the foregoing principles, the Applicant has failed to establish a proper basis for the exercise of the Court’s discretion in its favour. On the matter of delay, the Respondent asserts that the period of sixty-four days between the date of judgment and the filing of the application is inordinate and unexplained. Reliance is placed on section 79G of the Civil Procedure Act, which requires appeals from subordinate courts to be filed within thirty days of the impugned decision. 3. On the reason for delay, the Respondent submits that the Applicant’s contention that there was no prompt communication regarding the delivery of the judgment is untenable because a judgment notice was issued and Counsel for the Applicant was present in Court on 10th November 2025 when the judgment date was taken. The Respondent therefore submits that the Applicant had constructive notice of the judgment date and cannot rely on lack of communication as a justification for the delay. Reliance is placed on the case of **John Makuba Mburu *v* Charles Mwenga Mburu [2019] eKLR**, where the Court held that discretion to extend time is intended to prevent injustice arising from accident, inadvertence or excusable mistake, and not to aid a party who deliberately obstructs or delays the course of justice. 4. With respect to prejudice, the Respondent submits that granting the application would occasion prejudice, as it would deny her the opportunity to enjoy the fruits of her judgment. She asserts that the Applicant has not made any proposal on payment of the decretal sum pending the intended appeal thus she stands to suffer substantial loss if the application is allowed while the decretal amount remains unpaid. 5. As regards stay of execution, the Respondent submits that, should the Court be inclined to grant the orders sought, the same ought to be conditional upon payment of Kshs.150,000/- to her and the deposit of the balance of Kshs.133,435/- in a joint interest-earning account in the names of the parties’ advocates. She relies on **Gianfranco Manenthi *&* another *v* Africa Merchant Assurance Co. Ltd [2019] eKLR**, where the Court emphasized that an applicant seeking stay of execution must furnish security for the due performance of the decree and that a successful litigant should not be deprived of the fruits of judgment without adequate safeguards. In conclusion the Respondent urges the Court to dismiss the application for being unmeritorious. Disposition 1. The question for determination before this Court is whether the Applicant has made out a case for the grant of the orders sought. In an application seeking extension of time, the Court has to consider factors that include the length of the delay, the reasons for the delay, the prejudice likely to be suffered by the Respondent and the arguability of the intended appeal. In the case before me, there was a delay of roughly 12 days. The Applicant has demonstrated that it acted with dispatch once it was aware of the decision sought to be challenged on appeal. The reason for the delay is indicated to have been lack of notice and though the same is tenuous, the Court deems the absence of Counsel to take the judgment as a one of the factors that placed the Applicant in the sorry state it is in. The prejudice the Respondent is likely to suffer is a delay in enjoyment of the fruits of her labour should the appeal fail. 2. Presently, the Applicant has offered to deposit the entire decretal sum and the judgment will thus be secured. The Court in consideration of the motion before it, finds there is merit in granting the same. The Applicant is granted leave to file an appeal out of time provided it meets the following conditions:- 1. Pay the Respondent thrown away costs of Kshs. 30,000/- within 14 days of the Ruling herein. 2. Deposit the entire decretal sum in the joint names of the Advocates on record within 30 days of the Ruling herein. 3. File the appeal within 45 days of the Ruling herein. 4. There will be no order as to costs on this application. It is so ordered. **Dated and delivered at Kisumu this 22nd day of June 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**