https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1620

Kenya Power & Lightning Company v Onchiri (Miscellaneous Case E002 of 2026) [2026] KEELRC 1620 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1620 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Bungoma Miscellaneous Case E002 of 2026 DN Nderitu, J June 11, 2026 Between The Kenya Power & Lightning Company Applicant and Benson Ondigi Onchiri Respondent Ruling I. Introduction 1.In a judgement delivered on 27th February 2025 in Bungoma MCELRC No. E007 of 2022, the court ordered that the Respondent be reinstated and the Applicant was directed to pay his salary arrears from the date of his dismissal until reinstatement. The Respondent was also awarded costs of the cause and interest. 2.In a Notice of Motion dated 20th January 2026 (the application), the Applicant is seeking for orders that –i.Spent.ii.That this Honourable court be pleased to grant the applicant leave to appeal out of time against the judgement of the Honourable magistrate Cosmas Maundu delivered on 27th February 2025 in Bungoma MCELRC No. E007 of 2022.iii.That there be a stay of execution of the decree in Bungoma MCELRC No. E007 of 2022 pending the hearing and determination of this application.iv.That there be a stay of execution of the decree in Bungoma MCELRC No. E007 of 2022 pending the hearing and determination of the intended appeal.v.That the Honourable court be pleased to enlarge time for filing of an appeal by the applicant and thus deem the annexed memorandum of appeal as duly filed.vi.That costs of this application be provided for. 3.The application is expressed to be founded on Sections 1A, 1B, 3A, 79G, & 95 of the Civil Procedure Act, & Order 22 Rule 22, Order 42 Rule 6 & Order 51 Rule 1 of the Civil Procedure Rules. It is based on the grounds on the face of it. 4.The application is supported with the affidavit sworn by Dennis Maanzo, an employee of the Applicant, on 20th January 2026, with several annexures thereto. 5.In response to the application the Respondent filed a replying affidavit sworn by himself on 27th January 2026 with several annexures thereto. 6.On 27th January 2026 when the matter came up in court for directions, the court directed that the application be canvassed by way of written submissions. Miss Mulela for the Applicant filed written submissions dated 24th February 2026 while Mr Anwar for the Respondent filed written submissions dated 2nd March 2026. II. The Evidence 7.In the supporting affidavit by Dennis Maanzo, it is deponed that the Applicant is aggrieved by the judgment delivered on 27th February 2025 in Bungoma MCELRC No. E007 of 2022 in favour of the Respondent and intends to appeal against the entire decision. 8.It is deponed that the Applicant had previously filed an application for leave to appeal out of time in Bungoma ELRCA No. 400 of 2025, that was withdrawn on 1st October 2025 to allow for regularization of pleadings. Thereafter, the Applicant applied for certified copies of proceedings and judgment which were supplied on 20th January 2026. 9.The Applicant attributes the delay in filing the appeal to the illness of its counsel who was handling the matter and, further, to administrative challenges arising from the misplacement of the Applicant’s file in the office of its counsel during internal reorganization, which hindered timely filing of the appeal even after counsel resumed duty on 6th January 2026. 10.The Applicant asserts that the intended appeal is arguable and has high chances of success and that failure to grant leave would occasion prejudice denying it the opportunity to challenge the judgment. It is further contended that the Respondent will suffer no prejudice incapable of compensation by way of costs. 11.The Applicant emphasizes its constitutional right to be heard and maintains that the application has been brought without undue delay. It also indicates that a draft Memorandum of Appeal has already been prepared and is ready for filing. 12.Accordingly, the Applicant seeks leave to appeal out of time, stay of execution of the decree and, orders deeming the annexed memorandum of appeal as duly filed. 13.In the replying affidavit, the Respondent opposed the application for leave to appeal out of time and deposes that the same is frivolous, vexatious and an abuse of the court process. He avers that he was the successful claimant in Bungoma CMELRC No. E007 of 2022, whereby judgment was delivered in his favour on 27th February 2025, granting to him various reliefs, including reinstatement and damages for unlawful termination. 14.It is deponed that since the delivery of the judgment, the Applicant has engaged in a pattern of conduct aimed at frustrating the Respondent from enjoying the fruits of the judgment, including filing multiple appeals and applications. In particular, it is deposed that the Applicant filed a memorandum of appeal out of time on 11th April 2025, followed by an application dated 15th April 2025 seeking leave to appeal out of time and stay of execution. The Respondent opposed the said application and also filed an application to strike out the appeal. 15.The Respondent further avers that upon realizing the procedural defects in the above pleadings, the Applicant withdrew both the appeal and the application on 1st October 2025 to regularize its position. However, from that date until the filing of the present application on 20th January 2026, the Applicant took no action, thereby displaying indolence and unreasonable delay. 16.It is contended that the reasons advanced by the Applicant for the delay, including alleged illness of counsel and misplacement of the file, are unsubstantiated and do not explain the entire period of delay. The Respondent maintains that no sufficient cause has been shown to warrant the exercise of the Court’s discretion in favour of the Applicant as prayed. 17.The Respondent also states that due to the Applicant’s inaction, he proceeded to file his Bill of Costs, that was at the time scheduled for assessment by the trial court, and that allowing the present application would occasion prejudice by subjecting him to prolonged litigation, increased costs, and further delay in enjoying the fruits of the judgment. 18.In conclusion, the Respondent asserts that the Applicant has failed to meet the threshold for the grant of leave to appeal out of time and urges the Court to dismiss the application with costs. III. Submissions 19.Counsel for the Applicant submitted on a single issue – Whether the Applicant should be granted leave to file an appeal out of time. 20.It is the Applicant’s case that the delay in filing the appeal was neither deliberate nor inordinate, but was occasioned by the inadvertence of counsel who fell ill at the material time. The Applicant contends that this explanation constitutes sufficient cause and should not be construed as inaction or indolence. Counsel cited Baber Alibhai Mawji v Sultan Hasham Lalji & 2 Others [1995] KECA 32 (KLR) in support of this argument. 21.In urging the Court to exercise its discretion in favour of the Applicant, counsel cited Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR, wherein the Supreme Court set out the guiding principles for extension of time, urging that the remedy is discretionary. The court further states that an applicant must satisfactorily explain the delay, the application must be brought without undue delay and, the Court must consider any prejudice to the Respondent. 22.Further, counsel relied on Muringa Company Limited v Archdiocese of Nairobi Registered Trustees (2020) eKLR, wherein the Court emphasized consideration of factors such as the length and reason for delay, the conduct of the parties, the balance of competing interests, and whether the intended appeal is arguable. 23.Counsel for the Applicant further submitted that the intended appeal has high prospects of success and that no prejudice shall be suffered by the Respondent if the application is allowed. It is also argued that the right of appeal is constitutional and the Court should lean towards sustaining a party’s right to be heard as observed in Mwaniki Murangiri v Ndwiga Murangiri Muriambuci & Another (2019) eKLR. 24.On the whole, counsel for the Applicant maintains that sufficient cause has been demonstrated to warrant the exercise of the Court’s discretion in its favour and prays that leave to file the appeal out of time be granted in the interests of justice. 25.On the other hand, the Respondents’ counsel submitted globally in opposing the application. It is submitted that the application is frivolous, an abuse of the court process, and intended to frustrate the Respondent from enjoying the fruits of the judgment. 26.The Respondent contends that there has been an inordinate and unexplained delay. It is argued that the judgment was delivered on 27th February 2025 and the statutory period for filing an appeal lapsed on or about 2nd March 2025. The present application was filed on 20th January 2026, a delay of over nine months. It is further argued that, even considering the Applicant’s contention that related proceedings (Bungoma ELRCA No. 004 of 2025) were withdrawn on 1st October 2025, there remains an unexplained delay of over three months. 27.It is further submitted that the reasons advanced for the delay—namely, illness of counsel, and misplacement of the file—are unsubstantiated, implausible, and do not amount to sufficient cause. The Respondent argues that no evidence has been provided to prove counsel’s indisposition and that the explanation given does not satisfactorily account for the entire period of delay. 28.In urging the Court to decline the application, the Respondent’s counsel relied on Section 79G of the Civil Procedure Act and the principles set out in Bagajo v Christian’s Children Fund Inc (2004) 2 KLR 73, wherein the Court identified the relevant considerations in such an application to include the length of delay, reasons for the delay, arguability of the appeal, prejudice to the respondent and, the overall interests of justice. 29.Counsel for the Respondent further relied on Njeri Mwaniki v Mbuko Mwaniki (2015) eKLR, wherein the Court held that failure to explain an inordinate delay disentitles an applicant to the Court’s discretion. Similarly, in Martha Wangari Ng'ang'a & another v Jeremiah Ochieng Ninga [2021] KEHC 2839 (KLR), the Court emphasized that even relatively shorter delays must be satisfactorily explained and, that unexplained delay is sufficient ground to decline an application for extension of time to file an appeal. 30.Additionally, counsel cited Jacob Kinyuru M'mungania V M'nkanata M'mwongera [2021] eKLR, wherein the Court underscored the duty of an applicant to be candid and to fully disclose all material facts further holding that lack of candour and insufficient explanation for delay militate against the grant of a discretionary relief. 31.The Respondent maintains that the Applicant has been indolent and has engaged in multiple proceedings and applications aimed at delaying the matter. It is argued that allowing the application shall occasion prejudice by subjecting the Respondent to prolonged litigation and denying him the fruits of the judgment, contrary to the overriding objective of expeditious and proportionate resolution of disputes. 32.In conclusion, counsel for the Respondent submits that the Applicant has failed to demonstrate good and sufficient cause for the delay and, that the application does not merit the exercise of the Court’s discretion. The Court is therefore urged to dismiss the application with costs. IV. Analysis & Determination 33.The court has carefully read and considered the application, the affidavit in support, the replying affidavit, and submissions by counsel for both parties. The following issues commend themselves to the court for determination – Whether the Applicant is deserving of an extension of time to lodge an appeal out of time as prayed, Whether an order for stay of execution should issue; and, costs? V. Leave to File Appeal Out of Time 34.This limb of the application is based on Section 79G of the Civil Procedure Act which provides that –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 (Emphasis added) 34.Rules 12 & 18 of Employment and Labour Relations Court (Procedure) Rules, 2024 (The Rules) mirror Section 79G of the Civil Procedure Rules, providing that –12(1)Where a written law provides for an appeal to the Court, an appellant shall file a memorandum of appeal with the Court within the time specified under that written law.(2)Where an appeal is from a magistrate’s court or where no period of appeal is specified in the written law referred to in sub-rule (1), the appeal shall be filed within thirty days from the date the decision is delivered.18.The Court may, if circumstances justify, extend the time prescribed for the filing of an appeal or any document relating to an appeal. (Emphasis added) 36.The Supreme Court in – Nicholas Kiptoo Korir Salat v IEBC & 7 others (supra) laid down the principles that a court should consider in exercising the discretion to extend the time for filing an appeal as follows –1.Extension of time is not a right of a 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 on a case-by-case basis.4.Whether there is a reasonable reason for the delay.5.The delay should be explained to the satisfaction of the Court; Whether there will be any prejudice suffered by the respondents if the extension is granted;6.Whether the application has been brought without undue delay, and7.Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 37.It was argued and submitted for the Respondent that the Applicant had previously filed an application for leave to appeal out of time in Bungoma ELRCA No. 400 of 2025, which application was withdrawn on 1st October 2025 to allow for the regularisation of the pleadings. Thereafter, the Applicant applied for certified copies of proceedings and judgment that were supplied on 20th January 2026. The Applicant attributes the delay in filing the appeal to the illness of counsel handling the matter and to administrative challenges arising from the misplacement of the Applicant's file during internal reorganization of the office of his lawyers that hindered timely filing of the appeal even after counsel in conduct resumed duty on 6th January 2026. 38.The Respondent argued that since the delivery of the judgment the Applicant has engaged in conduct aimed at obstructing the Respondent from enjoying the fruits of the judgment, including filing multiple appeals and applications. The Respondent argued that the Applicant filed a memorandum of appeal out of time on 11th April 2025 and an application dated 15th April 2025 seeking leave and stay of execution and the Respondent opposed and sought to have the same struck out. 39.The Respondent avers that upon noting the procedural defects pointed out in the opposition, the Applicant withdrew both the appeal and application on 1st October 2025, but took no further steps until 20th January 2026, when the instant application was filed. It is the Respondent’s case that this delay was inordinate, unreasonable, and unexplained. 40.It is contended that the reasons now advanced for the delay, including counsel’s illness and misplacement of the file, are unsubstantiated and do not sufficiently explain the delay. There is thus no basis for the Court to exercise its discretion in favour of the Applicant. 41.The court has perused the proceedings of the lower court and noted that the impugned judgment was delivered on 27th February 2025 in the absence of parties, having earlier been slated for 11th September 2024. Thereafter, the Applicant filed a Notice of Motion dated 15th April 2025 in Bungoma ELRCA No. E004 of 2025 seeking leave to file the appeal out of time and for stay of execution. The Intended memorandum of appeal was annexed thereto. This filing was done one month and 19 days after the judgment was delivered. The Respondent opposed the application and filed a Notice of Motion dated 15th May 2025 to strike out the appeal for having been filed out of time without the leave of court. 42.The Respondent asserts that upon realizing that the appeal and the application were incompetent, the Applicant withdrew the same and went mute until when it filed the present application in January 2026, nine months later. The foregoing facts were neither rebutted nor denied rebutted by the Applicant. 43.The court notes that after the judgment in the lower trial court was delivered on 27th February 2025, the Applicant filed Bungoma ELRC Appeal No. E004 of 2025 that is said to have been withdrawn on 1st October 2025. The instant application was filed in court on 26th January 2026, approximately eleven months after the judgment. The Applicant has explained that the delay in filing the appeal was occasioned by the illness of its counsel and the misplacement of the file during some office reorganisation. 44.The court observes that the Applicant, upon being served with the judgment and decree, was intentional and took steps to file an application to seek an extension of time to file an appeal out of time. The court finds and holds that the Applicant took steps, albeit under the wrong procedure, to seek the leave presently sought before its counsel allegedly fell ill. The court takes the view that the delay is excusable as the same has been reasonably explained. Clearly, the Applicant as a party was not to blame for the delay and the filing of the wrong pleadings. 45.The court has perused the draft memorandum of appeal and finds and holds that, prima facie, the same raises arguable issues and, as such, the Applicant has demonstrated that the intended appeal has a probability of success. 46.As to the prejudice that the Respondent may suffer if leave is granted for the Applicant to file an appeal out of time, the Respondent shall certainly have an opportunity to respond to the appeal once filed. Further, if the intended appeal ultimately fails, the Respondent shall be compensated by way of costs and interest on the decretal sum and costs. VI. Stay of Execution 47.The applicant further seeks stay of execution pending the hearing and determination of the intended appeal. The Respondent takes the view that the Applicant has not met the threshold for the grant of the stay of execution. Counsel for both parties did not submit on the issue of stay of execution. 48.The jurisprudence on the grant for stay of execution pending appeal is now somehow settled. These applicable principles are provided for under Order 42 Rule 6(2) of the Civil Procedure Rules as follows –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; andb.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. 49.The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions. The court is bound to rendering substantive justice as opposed to following strict rules of procedure and restrictive interpretation of the law. 50.Section 1A (2) of the Civil Procedure Act provides that “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective”. Under Section 1B some of the aims of the said objectives are to ensure – “the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.” 51.As to what substantial loss entails, it was observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR that – 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. The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. 52.In Butt -vs Rent Restriction Tribunal (1982) KLR 417, the Court of Appeal gave guidance on how a court should exercise its discretion in an application for stay of execution and held that –1.The power of the court to grant or refusal an application for a stay of execution is a discretion of power. The discretion should be exercised in such a way as not to prevent an appeal.2.The general principle is granting or refusing a stay is: If there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion(sic) (trial court judgement).3.A judge should not refuse a stay if there is a good ground for granting it merely because in his opinion a better remedy may be available to the applicant at the end of the proceedings.4.The court, in exercising its powers under Order XLI rule 4 (2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered with cause the order for stay of execution to lapse. 53.A copy of the judgment intended to be appealed is attached to the application. The judgment ordered that the Respondent be reinstated and be paid salary arrears from the date of dismissal until reinstatement. The nature of the orders sought to be executed is in the nature of specific performance. The intended appeal is intended to vacate the order of specific performance, which ordered the Applicant to reinstate Respondent into its employ and pay to him salary arrears. The intended appeal, going by the annexed draft memorandum of appeal, raises jurisdictional issues relating to the reliefs awarded. In my view, denying the stay of execution shall render the intended appeal nugatory if the same ultimately succeeds. 54.Taking all factors into account and in order not to render the intended appeal nugatory as well as to give effect to the overriding objectives, the court shall grant the stay of execution pending the filing, hearing, and determination of the intended appeal. Moreover, the Applicant, a public body (parastatal), is by dint of Order 42, Rule 8 of the Civil Procedure Rules exempt from offering security for costs where it undertook the defence of the suit. 55.However, the leave to file the appeal out of time shall be subject to the conditions below. VII. Order 56.The court orders that –i.The application dated 20th January 2026 is merited and is hereby allowed.ii.The Applicant shall file the intended appeal and file and serve the record of appeal within 30 days of this ruling in default whereof the leave granted shall automatically lapse.iii.Costs of this application to the Respondent in any event. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 11TH DAY OF JUNE 2026.....................................DAVID NDERITUJUDGEELRC BUNGOMA