https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1967

Makanda v China State Construction Engineering Corporation Ltd (Employment and Labour Relations Miscellaneous E294 of 2025) [2026] KEELRC 1967 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1967 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Miscellaneous E294 of 2025 BOM Manani, J July 8, 2026 Between Richard Wambani Makanda Applicant and China State Construction Engineering Corporation Ltd Respondent Ruling 1.This cause is before Justice Onesmus Makau who is currently on his annual leave until 17th July 2026 or thereabouts. During his absence, this court (Justice Benard Matanga Odongo Manani) attends to his (Justice Onesmus Makau’s) matters filed under certificate of urgency as sanctioned under the twinning arrangement of the Employment and Labour Relations Court, Nairobi. It is in this context that the matter has been placed before me. 2.The court record shows that the Respondent filed an application dated 17th June 2026 seeking various reliefs including an order for stay of execution of the court’s ruling dated 4th June 2026 pending determination of the motion. The order of 4th June 2026 adopted the award by the Director of Occupational Safety and Health Services as a judgment of the court thus entering judgment for the Applicant for, inter alia, Ksh. 1,977,365.00. 3.The record shows that when the application dated 17th June 2026 was placed before the trial Judge on 18th June 2026, he ordered the Respondent to deposit the decretal sum in court within 10 days of the order. The court further ordered that in default of compliance with the order, the stay of execution orders were to lapse automatically. Meanwhile, it (the court) scheduled the application for inter-partes hearing on 22nd July 2026. 4.The Respondent has now filed the application dated 1st July 2026 seeking the following orders:-a.That the application be certified as urgent and be heard ex-parte in the first instance.b.That the court be pleased to maintain and or extend the orders of stay of execution of the trial court’s order issued on 18th June 2026 pending the hearing and determination of the application inter-partes.c.That the court be pleased to cancel, set aside, lift and recall the warrants of attachment and sale together with the proclamation notice dated 1st July 2026.d.That the court gives directions on costs of the application. 5.The application is supported by the grounds on the face thereof and the affidavit of one Morine Munene. The Respondent contends that it complied with the court order of 18th June 2026 by depositing the decretal sum in court within the 10 days which the court granted. It asserts that despite this, the Applicant has proceeded to take out execution proceedings to enforce the decree. 6.The Respondent contends that the 10th day for compliance with the aforesaid order fell on 28th June 2026 which was a Sunday. As such, it avers that the date for compliance was, by law, extended to the next working day which was 29th June 2026. It relies on Order 50 rule 3 of the Civil Procedure Rules to support its argument. 7.The Respondent contends that its insurer instructed its bankers on 29th June 2026 to transfer the decretal sum to the Judiciary account. It has annexed to the application a letter dated 29th June 2026 addressed to Equity Bank Ltd instructing the said bank to transfer the sum of Ksh. 1,977,365.00 to the Judiciary account whose details are set out therein. 8.The Respondent contends that since the 10 days for complying with the aforesaid court order were to lapse on 29th June 2026, the instructions its insurer issued to its bankers on that day to release the aforesaid sum to the Judiciary account were issued within the timelines which were set by the order. As such, it avers that the deposit was made as directed by the court and that it was therefore improper for the Applicant to take out execution proceedings. 9.When the application was first placed before me on 1st July 2026 for directions, I certified it as urgent and granted an order to maintain the stay of execution orders which were issued on 18th June 2026. I further directed that the application be served on the Applicant and be listed for mention on 7th July 2026 for further directions. 10.The reason for this was that I hoped that by this date, the parties might have reached a middle ground on the matter pending resumption of duty by the trial Judge. However, after deliberations with their counsel on 7th July 2026, it became apparent that there was not going to be consensus on the way forward. As such, it became necessary that I resolve the request for the interim orders sought pending hearing and determination of the motion inter-partes by the trial Judge. 11.Counsel having expressed contrasting positions on the matter, I asked them to make oral representations on the issue before I could render this ruling on the interim reliefs sought. The Respondent’s counsel essentially reiterated what has been set out in the earlier sections of this ruling. In addition, he contended that since the Applicant had not filed a response to the motion despite having been served on 2nd July 2026, the court should consider the motion as unopposed and grant it. 12.In response, the Applicant’s counsel acknowledged that his client was yet to file a response to the application. However, he contended that the court did not limit the time for filing the response to the application in its direction of 1st July 2026. He stated that his client intends to file a response to the motion in due course. 13.The Respondent’s counsel contended that the order requiring deposit of the decretal sum was made on 18th June 2026. He acknowledged that the order required the Respondent to make the deposit within 10 days and that the 10th day fell on 28th June 2026 which was a Sunday. 14.However, counsel argued that nothing stopped the Respondent from initiating the process of release of the money into the court’s account as soon as the court order was made on 18th June 2026. He submitted that it was improper for the Respondent to wait for the last day to initiate the process. 15.Counsel contended that although the process for release of the money may have been initiated on 29th June 2026, the actual deposit was done on 30th June 2026 outside the 10th day which the court had ordered. Consequently, he expressed the position that the execution process was legitimate and should be allowed to proceed to its logical conclusion. 16.Counsel also pointed out that although the Respondent has presented a letter dated 29th June 2026 to its bankers suggesting that it gave instructions for the money to be wired to the Judiciary account on 29th June 2026, it has not provided evidence to demonstrate that the said letter was delivered to the bank on that date. As such, he maintains that the deposit fell outside the 10 days which the court had sanctioned. 17.In response, the Respondent’s counsel referred the court to the time stamp on the bank transfer which shows that the transfer was completed by the bank on 30th June 2026 at 7:05:04 AM. He urged the court to take judicial notice of the fact that banks open their doors to the public from 8.00 AM and that the fact that the bank completed the impugned transaction at 7:05:04 AM on 30th June 2026 can only imply that it was acting on the instructions which had been given on 29th June 2026. Analysis 18.As mentioned earlier, the instant application was placed before me under certificate of urgency as the twin court of the trial Judge who is currently away on his annual leave and cannot therefore attend to the matter. Since the parties were unable to get to a middle ground on the matter, it behooves the court to adjudicate on the request for interlocutory reliefs pending resolution of the substantive issues in the application by the trial Judge once he resumes duty. 19.It is true as the Respondent contends that the Applicant is yet to file a response to the application. However, the window for filing such response has not yet closed. 20.Rule 51 of the Employment and Labour Relations Court (Procedure) Rules, 2024 entitles the Applicant to file his response to the application within seven (7) days from the date of service thereof on him. Since the Respondent’s lawyer states that he served the application on 2nd July 2026, the Applicant still has at least two (2) days to lodge his response thereto. As such, the court cannot find, as suggested by the Respondent, that he (the Applicant) has lost the right and opportunity to contest the application on account of not having filed a response to it. 21.Order 50 rule 3 of the Civil Procedure Rules provides as follows:-"Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed, and by reason thereof, such act or proceeding cannot be done, or taken on that day, such act or proceeding shall so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open.’’ 22.This rule essentially states that if the time for undertaking an activity or proceedings falls on a Sunday or on a day when the court offices are closed, that day shall be excluded from computation of the appointed time. The rule further permits the activity in question to be undertaken on the next working day. 23.The provision has been considered in a number of court decisions. For example, in, Francis Mukoma & another v Paul Muita Nderitu [2017] KEHC 7948 (KLR), the court held that where the last day for filing an appeal against a decision falls on a Saturday or Sunday, the appellant is entitled, on account of the provision, to file the appeal on the next working day. The court expressed itself on the matter as follows:-‘’Regardless of whether time expired on 6th or 7th August, 2016 those dates fell on days when either the court registry was closed or on a Sunday; the day when the registry was next open was on Monday 8th August, 2016 which is the date that the memorandum of appeal was filed. It follows that the appeal was duly filed within the limitation period.’’ 24.In Samba Colt Motors Ltd v Registrar of the Industrial Court & 2 others [2011] KEHC 1486 (KLR), the learned Judge expressed himself on the same subject as follows:-‘’Under Order 50 rule 3, where the time for doing any act or taking any proceeding expires on a Sunday or other day on which offices are closed, the action required to be done is deemed to have been timeously done if done on the day on which the offices are next open....…The court registry is closed on Saturdays and Sundays. That being the case, the sum of Kshs.6.5 million could not be deposited on 4th June, 2011 which was the last day. Since the money was deposited on 6th June, 2011 the action was done in time.’’ 25.In this case, the Respondent avers that the last (10th) day for making the deposit fell on 28th June 2026, a Sunday. As such, it avers that it processed the deposit on 29th June 2026 which was the next working day. 26.On the other hand, the Applicant contends that the Respondent ought to have processed the deposit earlier. He posits that the date of initiation of the process (29th June 2026) is not what is material. Rather, he contends that the material date is the date on which the funds hit the Judiciary account (30th June 2026). 27.Having regard to the case law which I have referred to above, the Respondent’s contention that if the last day for doing an act falls on a Sunday, that day is to be excluded from computation of time is correct. This is further self-evident from the wording of Order 50 rule 3 of the Civil Procedure Rules alluded to above. 28.In this case, the court order of 18th June 2026 required the Respondent to deposit the decretal sum into the Judiciary account within 10 days from the date of the order. Both parties agree that the last day for effecting the deposit fell on 28th June 2026 which was a Sunday. As such and if the case law referred to above is anything to go by, the last day for complying with the aforesaid court order was extended to 29th June 2026 which was the next working day. 29.The Respondent has presented preliminary evidence under oath by way of the affidavit dated 1st July 2026 to demonstrate that its insurer initiated the process of depositing the decretal sum on 29th June 2026 by instructing its bankers to wire the funds into the Judiciary account. The record shows that the bank completed the transfer on 30th June 2026 at 7:05:04 AM. 30.The Applicant’s counsel contends that there is no proof that the Respondent’s insurer’s letter of 29th June 2026 was presented to the bank on the same date. However, this statement was made from the bar since the Applicant is yet to file a response to the motion. 31.The transaction slip which is attached to the Respondent’s affidavit in support of its application suggests that the bank finalized the transaction at 7:05:04 AM on 30th June 2026. This was before 8:00 AM. 32.The court takes judicial notice of the fact that banks in Kenya usually open their doors to the public from around 8.00 AM onwards. As such, the time stamp of 7:05:04 AM on the transaction slip implies that the bank may have been acting on instructions which it had received earlier whilst it (the bank) was open to the public. 33.The dispute between the parties appears to be whether the Respondent’s insurer’s action of initiating the process of deposit of the decretal sum on 29th June 2026 by instructing its bankers to wire the money into the Judiciary account on the aforesaid date constituted a deposit of the amount in line with the court order of 18th June 2026 or whether the deposit is deemed to have been made on 30th June 2026 at 7:05:04 AM when the bank completed the transfer process. This is an issue which the trial court has to determine after it has heard the parties inter-partes after the Applicant files his response to the motion. 34.At this preliminary stage of the application, the court notes that only the Respondent has presented affidavit evidence to speak to the issue under consideration. The evidence suggests that the Respondent’s insurer instructed its bankers on 29th June 2026 to deposit the decretal sum into the Judiciary account. 35.As the parties agree, the last day for making the deposit fell on 29th June 2026, the day on which the Respondent’s insurer initiated the payment process by instructing its bankers to transfer the decretal sum into the Judiciary account. The instructions fell within the time frame which was set in the court order of 18th June 2026.Having regard to this evidence, the court is satisfied that the Respondent has presented persuasive preliminary material to warrant the grant of the interim orders sought pending further directions by the trial Judge. Conclusion 36.In the premises, I make the following attendant orders:-a. That the orders for stay of execution of the decree which were issued on 18th June 2026 are to be maintained until 22nd July 2026 when the application dated 1st July 2026 shall be placed before the trial court for further directions.b. That for the avoidance of doubt, this order shall lapse on 22nd July 2026 unless the trial court directs otherwise. DATED, SIGNED AND DELIVERED ON THE 8TH DAY OF JULY, 2026B. O. M. MANANIJUDGEIn the presence of:…………….for the Applicant…………….for the RespondentORDERIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.B. O. M MANANI