Structural Construction International Ltd v Muigai (Cause E033 of 2026) [2026] KEELRC 2396 (KLR) (12 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E033 OF 2026** **STRUCTURAL CONSTRUCTION** **INTERNATIONAL LTD….…INTENDED APPELLANT/APPLICANT** **-VERSUS-** **FRANCIS MUIGAI……………………………………....…RESPONDENT** *(Before Hon. Justice Abuodha Jorum Nelson)* **RULING** 1. The application before me is a Notice of Motion dated 23rd January, 2026 brought under ***Article 48, 50 (1) and 159 of the Constitution of Kenya 2010,*** ***Section 75(1) of the Civil Procedure Act, Order 42 rule 6, Order 43 rule 1, Order 51 rule 1 of the Civil Procedure Rules***. The application seeks orders inter alia that: * + - 1. ***Spent;*** 2. ***Spent;*** 3. ***That this Honourable Court be pleased to grant the Appellant/Applicant leave to file and serve an appeal out of time against the said judgement;*** 4. ***That upon grant of leave, the Memorandum of Appeal annexed hereto be deemed as duly filed upon payment of the requisite court fees;*** 5. ***Spent;*** 6. ***Spent;*** 7. ***That the costs of this Application abide the outcome of the appeal; and*** 8. ***That this Honourable court grants such further or alternative relief as it may have deem just and expedient in the circumstances.*** 2. The Intended Appellant/Applicant’s application is premised on grounds that: * + - 1. The Appellant is aggrieved by the Judgement delivered on 4th September, 2025 and has an arguable and meritorious appeal raising substantial questions of law and fact. 2. The Respondent has extracted warrants of attachment and sale both dated 10th December, 2025 and has signaled an intention to execute, exposing the Appellant/Applicant to immediate and irreparable financial and operational prejudice. 3. That the judgment was initially scheduled for delivery on 10th January, 2025 but was not delivered following the transfer of the presiding judicial officer; an occurrence beyond the Appellant/Applicant’s control. 4. That a rescheduled delivery date of 10th July, 2025 appeared on the court tracking system (CTS) yet the judgement was delivered much later on 4th September, 2025, without any notice to the Appellant/Applicant or its advocates. 5. That neither the court nor the Respondent notified the Appellant/Applicant or its advocates of the judgement delivery and the same was only delivered during routine internal litigation monitoring. 6. That the delay in filing appeal is fully explained, excusable, unintentional and inordinate, having been occasioned by administrative lapses within the judiciary. 7. That the intended appeal challenged, inter alia: misapplication of relevant wages orders; erroneous computation of alleged underpayments; improper award of house allowance despite a consolidated salary; improper award of leave pay despite payment of cash leave allowance; erroneous costs. 8. That unless leave and stay are granted; the appeal will be rendered nugatory and the Appellant/Applicant’s constitutional right to fair hearing and appeal will be irreparably prejudiced. 9. That the Respondent will suffer no prejudice incapable of compensation by costs whereas the Appellant/Applicant stands to suffer substantial and irreversible loss. 3. The application was supported by the Affidavit of **Karsan Harji Ragwani**, the Intended Appellant herein in which he reiterates the averments on the face of the motion. 4. In response, the Respondent filed a Replying Affidavit dated 20th February 2026 sworn by one **Francis Muigai**, stating that; * + - 1. That the Applicant has failed to demonstrate that it will suffer substantial loss as required under Order 42 Rule 6 of the Civil Procedure Rules, 2010, and that the alleged financial, operational and reputational prejudice remains vague and unsupported by evidence. 2. That the commencement or likelihood of execution does not, of itself, constitute substantial loss, execution being a lawful process for enforcement of a decree, and that the Applicant has not demonstrated any loss that cannot be adequately compensated by an award of damages or costs. 3. That the Applicant has failed to demonstrate that the intended appeal will be rendered nugatory or that it will suffer any irreversible prejudice if execution proceeds. 4. That the Applicant has not shown good and sufficient cause for the delay in filing the intended appeal, and that the Applicant was aware of the Judgment and ought to have taken steps to lodge an appeal immediately upon becoming aware thereof. 5. That following issuance of the decree on 9th December, 2025, the Respondent instructed auctioneers to commence execution and the Applicant was served with the Proclamation Notice dated 10th December, 2025, followed by Objection Notices dated 11th and 12th December, 2025. 6. That the foregoing demonstrates that the Applicant had notice of the Judgment and the execution proceedings and that the intended appeal is merely an afterthought intended to frustrate the Respondent and prevent him from enjoying the fruits of his judgment. 7. That compliance with procedural rules is essential to the orderly administration of justice and the Applicant’s failure to comply with the prescribed timelines renders the intended appeal incompetent. 8. That the intended appeal lacks merit as it merely rehashes matters that were considered and determined by the trial Court. 9. That the Applicant has not demonstrated willingness to deposit the decretal sum in an interest-earning account or in Court as a condition for the grant of stay. 10. That the Application is incompetent, fatally defective, frivolous and made in bad faith with the intention of frustrating the Respondent’s enjoyment of the fruits of the Judgment delivered on 4th September, 2025. 5. Application was disposed of by written submissions. All parties complied. **APPLICANT’S SUBMISSIONS** 1. The Applicant through its Advocates Maranga Nyang’ute & Company Advocates filed its written submissions dated 17th April, 2026 and on the issue of whether the Applicant should be granted leave to file the Appeal out of time, Counsel submitted that the proviso to **Section 79G of the Civil Procedure Act** allows the Court to admit an appeal out of time where an Applicant satisfies the Court that there was good and sufficient cause for the delay. He relied on the Supreme Court’s case of ***Nicholas Kiptoo Korir arap Salat v IEBC & 7 Others [2014] eKLR***, where the Supreme Court set out the principles to guide the Court in exercising its discretion, including that the application was brought without undue delay, if any delay that the Court must consider the length of the delay, that the delay must be explained, and any prejudice to the Respondent. 2. Counsel submitted that the Applicant had satisfied these requirements. He stated that the Judgment was delivered on 4th September, 2025 in the absence of the Applicant’s Advocates. That the Judgment had initially been scheduled for delivery on 10th January, 2025 but was not delivered following the transfer of the presiding judge. That it was thereafter rescheduled through the CTS for 10th July, 2025, but was not delivered and was instead delivered on 4th September, 2025 without notice to the Applicant or its Advocates. Counsel referred to the Applicant’s annexures KHR-2 and KHR-3 in support of this position. 3. That the delay in filing the Appeal was therefore caused by the Applicant’s lack of notice of the delivery of the Judgment and was neither deliberate nor inordinate. Counsel argued that the Applicant could not be faulted for failing to act within the prescribed period when it was not aware that the Judgment had been delivered. That the Applicant acted promptly upon becoming aware of the Judgment and had therefore shown good and sufficient cause for the delay. 4. Counsel relied on the case of ***Shajanand Holdings Limited v Atieno (Suing as the Administrator of the Estate of Alai Okolo alias Alaji Okolo) E026 of 2025***, where the Court found that the Applicant had sufficiently explained the delay where judgment had been delivered without notice. Counsel also relied on the cases of ***John Mungai Thuku v Humphrey Muiru Thuku & Muiru Thuku Muiru [2014] KEHC 7696 (KLR)*** and ***OMN v Jasper Nchonga Magari & Jackline Dama Karani [2020] KEHC 3792 (KLR)***, where the Courts recognised lack of notice of delivery of judgment as a basis for extending time to file an appeal. 5. It was further submitted that the circumstances of the present case were similar to those in the authorities relied upon and urged the Court to find that the delay was excusable and unintentional and that the Applicant had sufficiently explained the failure to file the Appeal within the prescribed period. 6. On the issue of prejudice, Counsel submitted that the Respondent would not suffer any prejudice if leave was granted that could not be compensated by an award of costs. That any prejudice could be addressed through an appropriate order for security under the stay application. On the other hand, Counsel argued that refusing leave would unjustly shut out the Applicant from pursuing its right of appeal. 7. On whether the intended Appeal raised arguable issues, Counsel submitted that the draft Memorandum of Appeal raised genuine issues for consideration by the appellate Court. These included the alleged misapplication of the relevant wage orders, the computation of the alleged underpayments, the award of house allowance despite the Applicant having been paid a consolidated salary, the award of leave pay despite payment of cash leave allowance, and the award of costs. 8. Counsel therefore submitted that the Applicant had satisfied the requirements under Section 79G of the Civil Procedure Act and had given a reasonable explanation for the delay. He urged the Court to exercise its discretion in favour of the Applicant and grant leave to file the Appeal out of time. 9. On the issue of costs, Counsel prayed that the application be allowed that the costs of the Application should abide the outcome of the intended Appeal. **RESPONDENT’S SUBMISSIONS** 1. The Respondent through its Advocates Nchogu, Omwanza & Nyasimi Advocates filed its written submissions dated 26th May, 2026. 2. On the issue of whether the Applicant should be granted a stay of execution, Counsel submitted that the Applicant had not met the requirements under Order 42 Rule 6(2) of the Civil Procedure Rules. He submitted that the Applicant was required to demonstrate substantial loss, file the application without unreasonable delay and provide security for the due performance of the decree. 3. On the issue of substantial loss, Counsel submitted that the Applicant had not demonstrated that it would suffer substantial financial loss or operational disruption if execution proceeded. He submitted that the mere fact that execution had commenced or was likely to commence did not, by itself, amount to substantial loss. He relied on the cases of ***James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR*** and ***Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KECA 94 (KLR)*** in support of that position. 4. Counsel further submitted that the Applicant had not shown that the decretal sum could not be recovered if the Appeal succeeded, or that the Respondent would be unable to refund the money. He relied on the case of ***Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] KECA 378 (KLR)***, where the Court held that whether an appeal would be rendered nugatory depends on whether the subject matter could be reversed or whether damages would reasonably compensate the aggrieved party. 5. Counsel submitted that the Applicant had also failed to show how payment of the decretal sum would cause financial hardship or disrupt its operations, that the payment could not be reversed, or that the Respondent was incapable of refunding the decretal sum. That the draft Memorandum of Appeal did not disclose arguable grounds as it merely raised matters that had already been considered and determined by the trial Court. In particular, he referred to the Applicant’s complaint on the applicable wage rates and submitted that the issue had already been addressed by the trial Court at paragraph 16 of the Judgment. 6. On the issue of delay, Counsel submitted that the Application had not been filed without unreasonable delay. He pointed out that the Judgment was delivered on 4th September, 2025 while the Application was filed on 23rd January, 2026, a period of four months and nineteen days. He relied on the case of ***Devki Steel Mills Limited v Henry Mbuvi Wambua & Another [2019] KEELRC 1350 (KLR)***, where the court held that a delay of 4 months was found to be inordinate. 7. Counsel also submitted that the Applicant had not given a satisfactory explanation for the delay and had not stated the date on which it allegedly became aware of the Judgment during its internal review. That the Respondent should not be made to bear the consequences of the Applicant’s failure to follow up on the delivery of the Judgment and urged the Court to find that the Application had not been filed timeously. 8. On the issue of security, Counsel submitted that should the Court be inclined to grant a stay, the Applicant ought to be directed to deposit the decretal sum of Kshs. 256,949/=, together with auctioneer’s costs of Kshs. 85,000/=, in a joint interest-earning account, failing which the funds should be released to the Respondent. 9. On the issue of whether the Applicant should be granted leave to appeal out of time, Counsel submitted that the Applicant had not provided a satisfactory explanation for the delay of 4 months and 19 days. He relied on the cases of ***Nicholas Kiptoo Korir arap Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR*** and ***Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR***,. 10. It was submitted that although the Applicant claimed that it did not receive notice of the delivery of the Judgment and only became aware of it during an internal review, it had not stated when that review took place or when it became aware of the Judgment. That the Applicant was served with the Objection proceedings on 11th and 12th December, 2025, and was therefore aware of the Judgment by that time. Counsel argued that if the Applicant intended to challenge the Judgment, it ought to have acted immediately upon becoming aware of it. 11. Therefore, the delay had not been satisfactorily explained and that the intended Appeal was an afterthought aimed at frustrating the Respondent and denying him the fruits of his judgment. That procedural rules are intended to ensure the orderly and efficient administration of justice and should not be treated as mere technicalities. 12. On the issue of costs, Counsel submitted that the Court should be guided by the principle that costs follow the event, as stated in the case of ***Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR*** and urged the Court to dismiss the Application and award the Respondent the costs thereof. **DETERMINATION** 1. I have considered the Application filed by the Applicant, the Replying Affidavit and the submissions therein and the issue that arises for determination is whether the Applicant should be granted leave to appeal out of time. I proceed to analyse it as follows. ***Whether the Applicant should be granted leave to appeal out of time;*** 1. The Intended Appellant filed a draft Memorandum of Appeal as annexure of the Notice of Motion dated 23rd January 2026. Under **Section 79G of the Civil Procedure Act 2010**, an appeal of the said decision should have been filed before the Court within 30 days of the decision. Section 79G aforesaid provides: - ***“****79G. Time for filing appeals from subordinate courts* *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.”* 1. To comply with the above set out provision, therefore, the intended Appellant should have filed their Memorandum of Appeal before this Court within 30 days of the subordinate court’s decision, hence by 4th October, 2025.The court notes that the same was not filed, however, the Intended Appellant attributes the delay to the fact that the Judgment was delivered without notice to the Appellant/Applicant or its Advocates. It is the Applicant’s case that the impugned judgment had initially been scheduled to be delivered on 10th January 2025, but was not delivered owing to the transfer of the presiding judicial officer, an occurrence entirely beyond the control of the Applicant. That it was subsequently rescheduled to 10th July 2025, but was ultimately delivered without notice on 4th September 2025. 2. On the other hand, the Respondent contends that the Applicant was always aware of the judgment date. That had the Applicant been keen on the appeal they would have immediately appealed once becoming aware of the judgement. That a decree was issued on 9th December 2025 and a proclamation notice served on the Applicant shortly thereafter on 10th December, 2025. That furthermore objection proceedings were filed as far back as 11th and 12th December 2025 and notices served by the Objector’s advocates to the Applicant through their advocates on record. That consequently the appeal is an afterthought to frustrate the Respondent from enjoying his fruits of judgement. 3. Having considered the rival positions of the parties, the Court now turns to the question whether the Applicant has shown sufficient cause for the failure to file the Appeal within the period prescribed under **Section 79G of the Civil Procedure Act**. This Section makes it clear that the Court may admit an appeal out of time where the Applicant satisfies it that there was good and sufficient cause for the failure to file the appeal within the prescribed period. The discretion to extend time is, however, a judicial discretion and is not exercised as a matter of right. I am guided by the Supreme court case of ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR)***. 4. In determining whether to extend the time for filing an appeal, the Court is guided by a number of factors. In ***Omar Shurie v Marian Rashe Yafar [2020] eKLR***, the Court of Appeal set out the principles to be considered in exercising this discretion, as follows: *“[B]ut this Court has over the years devised appropriate principles to be applied in achieving a ‘just’ decision in the circumstances of each case. The case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 is the locus classicus which laid down the parameters as follows:* *“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”* 1. Based on the aforesaid principles, the Court is persuaded that the Applicant has shown sufficient cause for the delay in filing the intended Appeal. From the record, it is clear that the impugned judgment was initially set to be delivered on 10th January 2025, it came for directions on 27th of March 2025 where another judgement date was given for 7th July 2025 not 10th July 2025, on the aforementioned date, directions were given for another date before ultimately being delivered on 4th September 2025. 2. I can see from the judgement that only the court assistant one Mr. Kirongozi was present when the judgement was delivered. There is nothing on the record to show that the Applicant or its Advocates or even the Respondent were present when the Judgment was delivered. The Respondent also does not assert that he or his advocates were present during the delivery of the impugned judgement. Therefore, I find the Applicant’s version of event more plausible and accept that the judgement was delivered without notice in the Applicant’s absence. 3. Furthermore, the fact that there is no affidavit of service or other evidence on record by the Respondent to show that, or when, the Applicant or its Advocates were served with a copy of the decree, Proclamation Notice, warrants of attachment or the Notices for appointment of advocates by the objector’s advocates in respect of the objection proceedings, the Court finds the explanation for the delay satisfactory. 4. I am guided by the Court of Appeal in the case of ***Ngoso General Contractors Ltd v Jacob Gichunge [2005] KECA 299 (KLR)*** where the courtstated as follows; *The law under Order 20 r 1 which we have set out fully at the opening of this judgment, is explicit in terms and mandatory in tone. A judgment which is not delivered ex tempore must be delivered on a subsequent date only upon notice being given to all parties or their advocates. It is common ground in this matter that it was only the advocate of the respondent, the successful party in the judgment, who had prior knowledge of the delivery date. No apparent reason was advanced for failure to serve or attempt to serve the appellant or his advocate. A copy of the judgment is exhibited in the record but it bears no date on which it was delivered. That alone is contrary to Order 20 r 3(1) which is also reproduced above. That an order was made by the learned magistrate granting a right of appeal within 28 days and directing the party in attendance to inform the other side does not cure the flagrant breach of a mandatory procedural rule which accords with fundamental rules of natural justice and the right to be heard which our Constitution safeguards. We would imagine that the appellant or his advocates would have, if given the opportunity to be present at the delivery of the judgment, made any representations to safeguard the interests of the appellant or taken early steps to prefer the appeal they belatedly expressed the wish to prefer. The appellant’s undoubted right of appeal was grossly compromised. It is a matter that the learned Judge expressed no view upon, and on this, he was wrong. The dateless judgment affected the calendar of events that would have led to the timous filing of an appeal and it matters not that the respondent’s counsel communicated the order of the trial court since that order was most irregular in the first place. At all events the respondent’s advocates admit that they received the appellant’s advocate’s letter enquiring about the delivery of the judgment as late as November 2001 which letter they never responded to although it suggested that there was no earlier communication from the respondent’s advocates. There was no mention of that letter in the ruling of the learned Judge and it is not clear whether it would have affected the exercise of his discretion if he had considered it.”* 1. This Court in the case of ***Kenya Airports Authority v Kahia & another (Civil Application E079 of 2023) [2023] KECA 1549 (KLR)*** observed that: *“….. notification is required whether the decision to be made is a ruling or judgement is not in doubt. It therefore follows that parties are entitled to a notice of the date of delivery of judgement and where such notice is not given, that omission may well amount to a sufficient reason for the purposes of enlargement of time to appeal if the applicant moves the Court for regularisation of his position expeditiously.” (emphasis mine)* 1. As regards the prospects of the intended Appeal, the Applicant has raised grounds in their memorandum of appeal on the application of the applicable wage orders, the computation of the alleged underpayments, the award of house allowance and leave pay, as well as the award of costs. These are matters that, in the Court’s view, raise issues for consideration on appeal. 2. On the question of prejudice, the Respondent’s concern is that granting leave will delay his enjoyment of the Judgment. The Court, however, considers that such delay can be addressed by appropriate terms as to security. Conversely, refusing leave would deny the Applicant the opportunity to challenge the judgment on appeal. 3. In the upshot, the Applicant’s application is merited and is granted. 4. **Leave is hereby granted to the Applicant to file appeal out of time on terms that the memorandum and record of appeal shall be filed and served within 30 days. In default, the leave so granted shall automatically lapse.** 5. **Further, this court grants stay of execution of the judgment of the lower court on condition that the applicant/intended appellant deposits the decretal sum in court within 30 days of this ruling in default execution to proceed despite the appeal.** 6. **Costs of this Application shall be in the Appeal.** 7. **It is so ordered.** **Dated at Nairobi this 12th day of August 2026** **Delivered virtually this 12th day of August 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**