https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2358

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **APPEAL NO. E382 OF 2025** **BETWEEN** **RAFIKI PHARMACEUTICALS LIMITED…………………. APPELLANT** AND **NELLY KEMUMA OMOKE…………………………...….1ST RESPONDENT** **VIEWLINE AUCTIONEERS………………………………2ND RESPONDENT** **RULING** *(Before Hon. Justice Abuodha Jorum Nelson)* 1. The Applicant filed application dated 10th November, 2025 brought under *Sections 1A, 1B, 3A, 79G of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, 2010, Section 17 of the Employment and Labour Relations Court Act and Rule 8 of the Employment and Labour relation Court (Procedure) Rules 2016.* 2. The Applicant sought orders of stay of execution of the Decree and judgment delivered herein against the Applicant on 10th July, 2023 pending hearing and determination of the intended appeal and leave to file an appeal out of time against the judgment by Hon. Rawlings Liluma Musiega on 10th July, 2023 MCEL /491/2018. 3. The application was supported by the grounds set on the face of the Application and the Affidavit of **YUSSUF MOHAMED** the Director of the Applicant who averred that: - * 1. In 2018, the 1st Respondent filed a suit MCEL/491/2018 at the Chief Magistrate Milimani Commercial Court. 2. The Applicant was supposed to conduct its defence before the Covid lockdown. 3. When the matter resumed, the 1st Respondent did not notify the Applicant of the resumption. 4. The matter proceeded without the knowledge of the Applicant to its final conclusion. 5. Finally, Judgement was delivered on 10thJuly 2023 before Hon. Rawlings Liluma at Millimani Magistrate Court at Nairobi in the absence of the Applicant. 6. On 5th of February 2024, the Respondent served the Applicant with warrants of attachment from its Auctioneers, the 2nd Respondent. 7. Aggrieved by the said Judgement, the Applicant made an application to the Court on 15th February 2024 to have the ex- parte judgement be set aside and the Applicant be granted leave to proceed with the defence hearing. 8. Applicant's Application was grounded on the fact that the 1st Respondent had a duty, which he neglected, to serve the Applicant with hearing notice and the Judgement notice in MCEL/491/2018 at Chief Magistrate Milimani Commercial Court. 9. On 12th April 2024, the Chief Magistrate Court dismissed the Applicant’s Application, which application meant to set aside the ex- parte Judgement and allow the Applicant to proceed with its Defence hearing. 10. Dissatisfied with that decision, the Applicant moved to High Court Commercial and Tax Division on 17th April 2024 and filed an application seeking leave to file an appeal out of time against the Judgement of the Lower Court dated 10th July 2023. 11. However, the Advocate on record then did not attach a draft memorandum of appeal in the said application. 12. The Application was then certified urgent on 18th April 2024 and set to proceed. 13. Later on, 10th February 2025, the Court downed its tool in the matter for lack of jurisdiction after realizing there was no draft memorandum of appeal on record to trigger its jurisdiction- hence the matter was not heard on merit. 14. The Appellant then clothed the Commercial and Tax Division Court with the requisite jurisdiction by filing a draft memorandum of appeal in the application. 15. However, the Commercial and Tax Division Court in its Ruling and *suo moto* on 7th November downed its tools for lack of jurisdiction and directed the matter be filed at this Court. 16. The Applicant now comes to this court as directed by Hon. Justice Njoki seeking for justice. 17. The Applicant should not be denied from seeking justice for mistake of the Advocate. 18. The Applicant has had an opportunity to peruse the Chief Magistrates commercial court file and found that the affidavit of service dated 30th day of March 2021, more than one year before it was served. 19. The email address the Respondent used to serve the Applicant is not the correct email address and does not belong to the Applicant's Advocate then. 20. The email lawmosiadvocates@co.ke does not exist and even in 2022, it would not have worked since it is improperly formatted. The right format should be info@lawmosiadvocates.co.ke or otherwise. 21. Once a message is sent to the said email used by the Respondent for service, it replies with a message that: "Address not found", which the 1st Respondent could have noticed. 22. That begs the question whether the 1st Respondent intentionally failed to serve the Applicant correctly with an intention to frustrate the Applicant’s case. 23. Now, the 2nd Respondent is now threatening to auction the Applicant’s property. 24. It is for this reason that the Applicant makes this instant Application believing that it is at risk of losing its property. 25. The delay in filing the appeal is no way the Applicant's fault. 26. The Applicant has been vigilant in seeking to be heard. 27. The Applicant is willing and ready to deposit security of the said appeal. 28. The intended appeal is arguable and has a high chance of success. 29. The orders sought shall not prejudice the Respondent if this application is allowed. 30. It is in the interest of justice that this application be allowed. 4. In reply the 1st Respondent filed her Replying Affidavit sworn on 12th February, 2026 by the 1st Respondent herein who opposed the Applicant’s Application where she averred that:- * 1. The application was scandalous, vexatious and frivolous. 2. The 1st Respondent advocates on record engaged the services of View line Auctioneers with a view to proclaim, attach and sell the Applicant's moveable properties to satisfy the Decretal sum and the Costs. This is the 2nd Proclamation. 3. The Applicant filed a similar application dated 12th February 2024 seeking to set aside the court's judgement for lack of service however the application was dismissed. 4. The Applicant has not appealed against the ruling of the lower court confirming that service was effected upon the Applicant prior to the delivery of the Judgement. 5. Lower court has since pronounced itself about the judgement it delivered and therefore the Applicant was misleading the court that the judgement delivered in Milimani CMELRC 491 of 2018 is ex-parte. 6. The Judgment sought to be appealed against is dated 1st July 2023 and the Applicant was an indolent litigant who does not meet the approval of this court. 7. The appeal has no chances of success considering that the Lower Court has confirmed that the judgement as delivered was a regular one. 8. The 1st Respondent advocates on record engaged the services of the 2nd Respondent to proclaim the Applicant's goods with a view to realize the judgement amount plus the costs. 9. There was no plausible excuse given by the Applicant to warrant the setting aside of the judgement. 10. It is not true that the Applicant cannot access the pleadings and the proceedings of the court online after being mapped on the judiciary portal. It is not true that the Applicant had to be served physically because the current Civil Procedure Rules admit service electronically. 11. It was not the 1st Respondent nor her advocates to Map the Applicant on the judiciary portal but the process must be initiated by the Applicant. 12. Applicant has severally moved the court but all his applications to set aside and be granted leave have been declined as explained on the face of the application. 13. The draft memorandum of appeal dwells on service which issue was dealt with in the ruling dated 12th April 2024 and no appeal has been lodged against the said ruling. 14. A judgement notice dated 25th January 2023 was served upon the Applicant on 24th January 2024 but he never bothered to lodge an appeal on the lower court judgement. 15. The application has not met the requirements for the stay of execution and the Applicant has not demonstrated on how he is likely to suffer substantially if an order for the stay of execution is not allowed. 16. The Applicant was ordered to deposit Kshs.500,000/= but he never complied with the court order. 17. The Applicant wants protection of the court whose orders he is not ready and willing to comply with. 18. Mistakes of an advocate can be visited on a litigant. The Applicant has not given any cogent reason for the delay in filing the instant application 3 years down the line. 19. The Applicant is frustrating the 1st Respondent from enjoying her fruits of the judgement delivered 3 years ago. 20. The application in a nutshell lacks merit and the same should be dismissed with costs. 5. The Application was disposed of by written submissions. **APPELLANT’S SUBMISSIONS** 1. The Appellant’s advocates Kaveke Mwania & Co. Advocates filed written submissions dated 13th March, 2026 and submitted that the Appellant was not to blame for the delay in filing this appeal as the events went beyond its control as already explained and which caused the delay. 2. On the issue of whether the Respondent effected service after the resumption of the case counsel submitted that this was the root cause of the protracted litigation and had the Respondent effected service to the Appellant the suit could have been determined on merit and settled. That the Respondent used the wrong email address to serve the Appellant and then went ahead and filed a defective affidavit of service which affidavit the trial magistrate relied upon to enter a default judgment to the detriment of the Appellant. 3. It was submitted that the process server was not cross-examined by the Appellant who denied service hence the judgment entered on that account was irregular. Reliance was placed on the case of **Peter Ndeti Ndolo v William Mutisya Muindi(2021) eKLR** on cross-examination of process server by the party denying the service. 4. Counsel submitted that the trial magistrate did not make a finding regarding the validity of the hearing notice on the Appellant. That in the circumstances the judgment of the 10th July, was irregular and should not stand. 5. On the issue of whether the Appellant should be denied a chance to be heard counsel submitted that the right to fair hearing was a protected right under Article 50(1) of the Constitution. That the denial of the right flies against this provision and in particular the fact that the Respondent did not effect the hearing notice on the Appellant. 6. On the security of costs it was submitted that the Appellant was ready and willing to offer security of costs once the appeal is allowed by depositing its Motor Logbook in court. That an application to that effect has been filed. **RESPONDENTS’ SUBMISSIONS** 1. The Respondents’ through their advocates Ndemo Mokaya & Company Advocates filed written submissions dated 12th February, 2026 and on the issue of whether or not to grant leave to appeal out of time or to admit an appeal out of time counsel submitted that it was an exercise of discretion which must be on fixed principles and not on private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously. 2. It was submitted that the Court's discretion being judicial must therefore be exercised on the basis of evidence and sound legal principles, with the burden of disclosing the material falling squarely on the Applicant for such orders. One of those judicial principles expressly provided for in the above provision is that the Applicants must satisfy the Court that he has a good cause for doing so. 3. That if the Appellant had a good case on the merits but is out of time and has no valid excuse for the delay, the court must guard itself against the danger of being led away by sympathy, and the appeal should be dismissed as time-barred, even at the risk of injustice and hardship to the Appellant. 4. It was submitted that as to the principles to be considered in exercising the discretion whether or not to enlarge time counsel relied on among others the case of **First American Bank of Kenya Ltd vs Gulab P Shah & 2 Others Nairobi (Milimani) HCCC No. 2255 of 2000 (2002) 1 EA 65** the Court set out the factors to be considered in deciding whether or not to grant such an application and these are (i) the explanation if any for the delay; (ii) The merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; (iii) Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the Applicant. 5. On the issue of whether the Applicant has met the requirements for stay of execution counsel submitted that stay of execution pending appeal was governed by Order 42, Rule 6 of the Civil Procedure Rules. The power of a court to grant stay of execution was discretionary just like the leave to file the appeal out of time. It was further submitted that the purpose of stay of execution was to preserve the subject matter in dispute while balancing the interests of the parties and considering the circumstances of the case. The Application lacked merit and ought to be dismissed as the Applicant failed to satisfy the conditions pre-requisite for granting an order for stay of execution pending appeal. 6. It was further submitted that for the Applicant to obtain a stay of execution, he must satisfy the court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss; there must be empirical or documentary evidence to support such contention. It meant the court would not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss. The Application has not been brought within reasonable time. It is almost 2 years from the date the judgment was delivered. 7. Counsel submitted that in the unlikely event that the application was allowed, then the Applicant must be ordered to deposit the sum of Kshs 512,413.49/= in court. **DETERMINATION** 1. This court has fully considered the Application, the Replying Affidavit by the Respondents and both parties’ submissions together with the authorities relied upon in making the final determination in this matter. 2. On the issue of stay orders, the grounds upon which this court exercises the discretion to grant a stay of execution are well governed by the Civil Procedure Rules under Order 42 Rule 6 which stipulates as follows: - *(2) 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; and (b) 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.* 1. In **Joseph Odide Walome v David Mbadi Akello [2022] eKLR** the court in support of the above provision held as follows; *An applicant needs to satisfy the court on the following conditions before they can be granted the stay orders:* * + 1. *Substantial loss may result to the applicant unless the order is made,* 2. *The application has been made without unreasonable delay, and* 3. *Such security as the court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant****.*** 1. On the issue of substantial loss, this was ably explained by Gikonyo J in the case of **James Wangalwa & Anor v Agnes Naliaka Cheseto [2012] eKLR** where the learned Judge observed: “*No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. 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. This is what substantial loss would entail*. 1. The Appellant is seeking stay of execution of the judgment delivered on 10th July, 2023 which is 3 years down the line. The Appellant has filed numerous applications being one dated 15th February, 2024, 23rd May, 2024 and 17th April, 2024 all which were dismissed for the reason of approaching the court with inordinate delay, two for failing to attach a memorandum of appeal and three for lack of jurisdiction. 2. The Appellant blames its advocates and states that the mistakes of advocates should not be met on a litigant but this court notes that even where a party has an advocate it is their duty to prosecute their matter. Not all blunders are apportioned to the advocates. The court is guided by the case of**Habo Agencies Limited -v- Wilfred Odhiambo Musingo (2015) eKLR** where thecourt stated that; *it is not enough for a party in litigation to simply blame the Advocate on record for all manner of transgressions in the conduct of litigation.* 1. This court notes that the lower court through the application dated 15th February, 2024 delivered its ruling on 12th April, 2024 where the Appellant’s application to set aside the judgment was dismissed for approaching the court with inordinate delay and found that the judgment was regular and the Appellant herein cannot claim otherwise. 2. This court notes that the Appellant never appealed this court’s decision of 12th April, 2024 of dismissing its application to date. In its application to appeal the judgment out of time dated 17th April, 2024 the Appellant’s advocates failed to attach the memorandum of appeal and the court on 10th February, 2025 downed its tools for lack of jurisdiction as well as on 7th November, 2025 despite filing the memorandum of Appeal still the court found that it did not have jurisdiction. 3. This court notes that since the lower court’s claim concerned an employment issue it was upon the Appellant or its counsel to know that any appeal would lie in the employment and labour court and not the commercial and tax Division court. The ignorance of the law is not a defence. The Appellant caused its own delay. 4. The 1st Respondent alleged that this was a second proclamation and the Appellant was all aware of the proceedings because assuming as it claims it was not served with the hearing notice then the entry of the judgment was served on 24th January, 2024 and it acted in February 2024. 5. Needless to say, the Appellant has not appealed the lower court’s decisions denying it chance to set aside the judgment but appeals the judgment itself. A closer scrutiny of the memorandum of appeal is centralized on the issue of service of hearing after the case resumed which issue the court dealt with in the lower court ruling of 12th April, 2024 which the Appellant has not appealed. 6. As observed in the cases cited above, the Appellant has not illustrated how it will suffer substantial loss in this application apart from relying on the intended appeal being rendered nugatory. 7. On the second limb of approaching the court without unreasonable delay, this court notes that judgment was delivered on 10th July 2023, and this application filed on 10th November, 2025 which was a long delay on the part of the Appellant as noted in the previous applications. This court finds this period to be inordinately long in all circumstances and will not entertain the allegations of the mistake of the counsel. 8. On the issue of security for costs the Appellant is proposing motor vehicle logbook instead of decretal sum without illustrating why the same should be allowed or providing its financial status since the application seeking the alternative security of costs was made on 23rd May, 2025 which is one year down the line and the same was dismissed for lack of jurisdiction. This court therefore is of the view that since it is one of the requirements the Appellant should abide by the same which in its application it stated as such but in the submissions its proposing to substitute the same. 9. The Appellant has therefore not met the conditions for grant of the orders of stay. 10. On the issue of leave to appeal out of time the applicable Rule in applications of this nature is Rule 18 of ELRC (Procedure) Rules, 2024 which is the guiding law in answering the question whether the prayer to enlarge time to file the appeal is merited. In **Charles N. Ngugi v ASL Credit Limited [2022] eKLR** the court held as follows:- *However, the intended appeal ought to have already been filed before or together with an application seeking leave to extend time for filing an appeal.* 1. The Supreme Court in the case of **Nicholas Kiptoo Korir Arap Salat v IEBC and 7 Others [2014] eKLR** enunciated the principles applicable in an application for leave to appeal out of time. The Court stated inter alia that: *“(T)he underlying principles a court should consider in exercise of such discretion include;* *1. Extension of time is not a right of any 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 a case- to-case basis;* *4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;* *5. Whether there will be any prejudice suffered by the Respondent if the extension is granted;* *6. Whether the application has been brought without undue delay.* *7. .....* 1. In this particular case the application has been filed with a draft Memorandum of Appeal. The Judgment in this matter was delivered on 10th July, 2023. The Applicant claimed that the application seeking leave to file the appeal out of time dated 17th April, 2024 was filed without the draft memorandum of appeal and the court downed its tools on 10th February, 2025 and dismissed the application for failure to file with the draft memorandum of appeal which was later filed and the court still found that it did not have jurisdiction to entertain the suit and referred them to this court. 2. The Appellant blames its advocates for the delay whereas this court has stated above that even though the mistakes of advocates are not to be met on litigants the litigant is the owner of the case and has a duty to prosecute their case. Whereas the right to be heard under Article 50 of the Constitution is a protected right the orders sought by the Appellant are discretionary in nature and the same should not cause prejudice to the 1st Respondent who has waited since she filed her case in 2018 to enjoy her fruits of judgment delivered in 2023. 3. The court also has had a chance to look at the draft Memorandum of Appeal and takes the view that it does not raise serious triable issues since it is centralized on service of the hearing notice which issue was dealt by the lower court and the Appellant has not appealed against the said ruling. On the prejudice to be suffered by the Respondent this court notes that the 1st Respondent who filed her case in 2018 stands prejudiced by waiting for longer when the judgment was delivered three years ago to enjoy the fruits of her judgment. 4. The Applicant has therefore not met the principles for extension of time for filing the appeal out of time. 5. **In the upshot, the Application dated 10th November, 2025 is found unmerited and is hereby dismissed with costs to the 1st Respondent.** 6. **It is so ordered.** **Dated at Nairobi this 28th day of July 2026** **Delivered virtually this 28th day of July, 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**