https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1850

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT MACHAKOS** **ELRC MISC. APPLICATION NO. E059 OF 2025** ***(Arising from Machakos CMELRC Cause No. E017 of 2023)*** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **THE PRINCIPAL, KATHIANI GIRLS HIGH SCHOOL** **THE CHAIRPERSON, BOARD OF MANAGEMENT,** **KATHIANI GIRLS HIGH SCHOOL……..………….........APPLICANTS** **VS** **PHOSTINE KANYIVA MBITHI (Suing as the legal** **representative of the estate of CAROLINE MBINYA** **NDAKA a.k.a MRS MBITHI - deceased)……….….....RESPONDENT** **RULING** 1. The Applicants filed a Notice of Motion application dated 11th December 2025 seeking orders: 2. *Spent* 3. *THAT leave be granted to the Applicant to file an appeal out of time against the judgment delivered on 30th October 2024 in Machakos ELRC Cause No. E017 of 2023.* 4. *THAT pending the hearing and final determination of the intended appeal, there be a stay of execution of the judgment delivered in Machakos ELRC Cause No. E017 of 2023 and all consequential proceedings.* 5. *THAT the annexed Draft Memorandum of Appeal be deemed duly filed upon payment of requisite court fees.* 6. *THAT costs of this application be in the intended appeal.* **Applicants’ Case** 1. The Applicants aver that judgment in Machakos ELRC Cause No. E017 of 2023 was delivered on 30th October 2024 in favour of the deceased Claimant. The 1st Applicant avers that the Claimant, Caroline Mbinya Ndaka, passed away before the matter was concluded, a fact that was only disclosed to her and to the Court during execution proceedings. 2. They state that following this discovery, Phostine Kanyiva Mbithi was substituted as the legal representative of the deceased in July 2025. Subsequently, they filed an application dated 5th August 2025 seeking to set aside all proceedings conducted after the Claimant's death, which was dismissed on 21st November 2025. 3. The Applicants contend that they had reasonably awaited the outcome of that application, its determination directly bearing on whether an appeal remained necessary, consequently, the statutory period for filing an appeal lapsed. 4. They further aver that execution has since commenced and unless a stay is granted, the intended appeal will be rendered moot. 5. It is the Applicants' case that the intended appeal raises serious legal grounds, is arguable, and has reasonable chances of success. They assert that no prejudice will be occasioned to the Respondent if the orders sought are granted, as the Respondent can be adequately compensated in costs. **Respondent’s Case** 1. In opposition to the application, the Respondent filed a replying affidavit dated 23rd January 2026. 2. The Respondent avers that the application is an abuse of the court process, bad in law and incompetent, a delaying tactic, made in misapprehension of the applicable law, and ill-advised. She urges that the application be dismissed with costs in the interest of justice. 3. The Respondent states that she was substituted as the original Claimant on 31st July 2025, the original Claimant having died after hearing and filing of submissions but before delivery of judgment. 4. She contends that if the Applicants were desirous of appealing the judgment dated 30th October 2024, they ought to have lodged an application for leave to appeal out of time immediately upon substitution on 31st July 2025; instead, they filed an application challenging the said judgment and seeking a stay of execution, which application was dismissed on 21st November 2025. 5. The Respondent further contends that if the Applicants were dissatisfied with the ruling of 21st November 2025, the proper course was to appeal that ruling. 6. She avers that it is evident from the Draft Memorandum of Appeal that the Applicants do not seek to set aside the ruling of 21st November 2025 but are solely interested in the judgment of 30th October 2024, rendering the draft Memorandum of Appeal incompetent and fundamentally flawed, raising no arguable ground whatsoever. 7. It is the Respondent's case that the judgment of 30th October 2024 and the ruling of 21st November 2025 are two distinct court decisions made on different dates, grounded in different legal applications, doctrines, and issues, and that no party aggrieved by either can consolidate both into a single memorandum of appeal. 8. She further avers that if the Applicants were dissatisfied with the ruling of 21st November 2025, they ought to have appealed it directly, as no leave was required, the thirty-day period not having expired at the time of this application. 9. The Respondent asserts that the Applicants seek a second bite of the same cherry and are engaged in a scheme to delay her from enjoying the fruits of successful litigation. She contends that it is trite law that litigation must not be conducted on a basis of trial and error, and that at some point litigation must come to an end. 10. She avers that she stands to be greatly prejudiced and ousted from the seat of justice should the application be allowed, and that the Applicants have not demonstrated any loss they will suffer so as to satisfy the conditions for a stay of execution. 11. In the alternative, should the Court be inclined to allow a stay of execution, the Respondent prays that the Applicants be ordered to deposit half of the decretal amount to her and the remaining half into a joint interest-earning account in the names of both counsel. She urges that the application is devoid of merit and ought to be dismissed with costs. **Applicants’ Submissions** 1. The Applicant submitted on three issues: whether the Applicants should be granted leave to appeal out of time; whether the Applicants have met the threshold for grant of an order for stay of execution; and who should bear the costs of the application. 2. On the first issue, the Applicants submitted that Article 48 of the Constitution guarantees the right to access to justice, and Article 159(2)(d), directs that justice shall be administered without undue regard to procedural technicalities. They further relied on Section 20(1) of the Employment and Labour Relations Act, which similarly enjoins the Court to act without undue regard to technicalities, and on Section 79G of the Civil Procedure Act, which provides 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 in time. They also relied on Section 95 of the Act and Order 50 Rule 6 of the Civil Procedure Rules, which vest in the Court the power to enlarge time upon such terms as justice may require. 3. On the applicable principles, the Applicants relied on [***Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2003/201/eng%402003-07-11), where the Court, citing ***Leo Sila Mutiso v Rose Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997)***, set out the considerations for extension of time 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."* They further relied on [***Gedion Mwando Ujiji V Justius Amunga Ambuka [2007] KECA 256 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2007/256/eng%402007-07-13), where it was observed that the law does not set out any minimum or maximum period of delay and that all it requires is that any delay be explained. 1. On delay, the Applicants submitted that at the time judgment was delivered on 30th October 2024, the Claimant had already passed away on 24th September 2024 during the pendency of the proceedings, therefore, there was no living Claimant to appeal against. 2. They submitted that the Claimant's counsel neither informed the Applicants nor the Court of the death, and no steps were taken to substitute the Claimant in accordance with Order 24 Rule 3(1) of the Civil Procedure Rules. Substitution was only sought months after judgment, in July 2025, so as to proceed with execution. Thereafter, the Applicants filed an application to set aside the judgment, which was dismissed in November 2025. 3. It was submitted that the Applicants reasonably believed that the determination of that application would fully resolve the matter, rendering an appeal unnecessary. By the time the ruling was delivered, the statutory period under Section 79G of the Civil Procedure Act had lapsed. Therefore, the delay was neither intentional nor inordinate but was occasioned solely by the pendency of their application challenging proceedings taken after the Claimant's death. 4. The Applicants further submitted that the intended appeal raises substantial, weighty, and arguable issues with high chances of success, and that no prejudice would be occasioned to the Respondent should the appeal proceed, as the Respondent's rights would not be extinguished and she would retain the right to be compensated with accruing interest should the appeal be dismissed. 5. They argued that to deny the application would be to deny the Applicants their fundamental right to be heard, which is not only a constitutional right but also a principle of natural justice; and they urged the Court to exercise its unfettered discretion in the interests of justice and in accordance with the overriding objective. 6. On the second issue, the Applicants submitted that the grant of a stay of execution is a matter of discretion and relied on Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, which provides that no order for stay shall be made unless the court is satisfied that substantial loss may result to the applicant unless the order is made; the application has been made without unreasonable delay; and such security as the court orders has been given. 7. In support, they cited [***Tabro Transporters Ltd V Absalom Dova Lumbasi [2012] KEHC 5549 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/5549/eng%402012-11-12)***:*** *“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. Then the court is faced with a novel task of balancing the two competing rights to an almost constitutional symmetrical bound.”* They further relied on[***Nicholas Stephen Okaka & another v Alfred Waga Wesonga [2022] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/1123/eng%402022-03-29)*.* 1. The Applicants submitted that they would suffer substantial loss should execution proceed and the appeal would be rendered nugatory. Secondly, they were not guilty of laches, having approached the Court in good time given the unique circumstances of this matter, and that their aim was not to obstruct justice but to ensure it is upheld for all parties. Thirdly, they were ready to deposit such sum as the Court may direct as security for the due performance of the decree, pursuant to Order 42 Rule 7(1) of the Civil Procedure Rules. 2. On the Respondent's prayer that half the decretal sum be deposited to her directly, the Applicants submitted that the Respondent's financial resources are unknown to them, thus, they are apprehensive that should part of the decretal sum be so deposited, they would be unable to recover it should they succeed on appeal. They relied on [***National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2006/333/eng%402006-02-10), where the Court of Appeal held: *"……….while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge."* 1. They accordingly prayed that the Applicants be directed to deposit half of the decretal sum into an interest-earning account in the names of both advocates to allow the intended appeal to proceed on its merits. 2. On costs, it is the Applicants’ submission that costs follow the event pursuant to Section 27 of the Civil Procedure Act, Cap 21 Laws of Kenya, and relied on [***Haraf Traders Limited v Narok County Government [2022] KEHC 2357 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/2357/eng%402022-02-14)in support thereof. **Respondent’s Submissions** 1. The Respondent submitted on two issues: whether the applicants should be granted leave to appeal the judgement dated 30/10/2024 out of time; whether there should be stay of execution of the court’s judgment dated 30/10/2026; and who is to bear the costs of the application. 2. On the first issue, the Respondent submitted that the Court should be guided by the factors set out in [***Nyaiera v Egerton University [2022] KEELRC 3775 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/3775/eng%402022-06-28)***,*** which reiterated the Supreme Court's decision in [***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/12/eng%402014-07-04): *“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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the courtWhether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. 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; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”* 1. The Respondent submitted that judgment in MELRC E017 of 2023 was delivered on 30th October 2024 and the original Claimant was substituted on 31st July 2025, a fact the Applicants themselves admit. It was submitted that instead of immediately filing an application for leave to appeal out of time upon substitution, the Applicants filed an application dated 5th August 2025 seeking to set aside the judgment and for stay of execution, which was dismissed on 21st November 2025. The current application was only filed on 11th December 2025, being one hundred and thirty-three days, over four months, after substitution was done, and that delay was not explained to the satisfaction of the Court. 2. On the application of Section 79G of the Civil Procedure Act, the Respondent submitted that its provisions apply only where an appeal has already been filed out of time and the applicant seeks to have it admitted, and not where no appeal has been filed, as the Court cannot admit a non-existent appeal. The Respondent relied on [***Gerald M’limbine V Joseph Kangangi [2008] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2008/1923/eng%402008-06-30) , where the High Court stated: *"* *My understanding of the proviso to section 79G is that an applicant seeking 'an appeal to be admitted out of time' must in effect file such an appeal, and at the same time seek the court's leave to have such an appeal admitted out of the statutory period of time. The proviso does not mean that an intending appellant first seeks the court's permission to admit a non-existent appeal out of the statutory period. To do so would actually be an abuse of the court's process."* 1. It was further submitted that the Applicants had not filed any substantive appeal before the Court as required under Section 79G, having only annexed a draft memorandum of appeal, which is not a substantive appeal. The Respondent relied on [***Nyaiera v Egerton University (Supra)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/3775/eng%402022-06-28), where this Court, as currently constituted, dismissed a similar application for failure to annex any draft appeal, stating: *"Indeed this application is coming late in time. The appellants have not annexed any draft appeal to the application. There is no explanation given as to why they did not file the appeal after being aware of the judgement six (6) months earlier."* 1. It was submitted that in the present matter, the application was being made over four months after substitution and over twelve months since delivery of judgment, with no proper explanation as to why the Applicants did not appeal immediately after substitution on 31st July 2025. Therefore, the Applicants have not fulfilled any of the conditions in ***Nicholas Salat (supra)*** and do not deserve to be granted leave to appeal out of time. 2. On the second issue, the Respondent submitted that the opening words of Order 42 Rule 6 of the Civil Procedure Rules presuppose the existence of an appeal, the provision beginning with the words *"No appeal or second appeal shall operate as a stay of execution."* 3. It was submitted that there is currently no appeal pending before the Court challenging the judgment of 30th October 2024, the Applicants having only annexed a draft memorandum of appeal expressing an intention to appeal, which does not constitute an appeal in law. The Respondent thus invited the Court to find that proceeding to rule on the conditions for stay of execution would be an exercise in futility. 4. The Respondent submitted that it is crystal clear that the Applicants are in a scheme to have a second bite of the cherry, their initial application dated 5th August 2025 having been dismissed on 21st November 2025 with stay of execution denied, and the present application only filed thereafter. 5. It was submitted that the appeal was clearly an afterthought and that it is trite law that litigation must not be conducted on the basis of trial and error. Further, since judgment was delivered on 30th October 2024, she is yet to be paid, and any further delay would greatly prejudice her and lead to a denial of justice. 6. I have examined all the evidence and submissions of the parties herein. The applicant has sought leave of this court to file an appeal out of time. As submitted in this application, the grant for leave to file an appeal out of time is discretionary. But that as it may be, there is still a further test to ensure the application is filed timely and that there would be no prejudice suffered by the respondent if the application is allowed. Lastly, the court must test the chances of the appeal succeeding if the application is granted. 7. The applicant has filed this application dated 11/12/2025 seeking to appeal against a judgment delivered on 30/10/24 over 14 months from the time of delivery of the judgment. 8. The applicant has however averred that the delay was occasioned by the fact that judgment was delivered in favour of the deceased claimants and the 1st claimant Caroline Ndaka also passed away before the matter was concluded. 9. The applicant avers that following this discovery Phostine Kanyiva Mbithi was substituted as the legal representative of the deceased in July 2025. They sought to set aside all proceedings conducted after the claimant’s death which application was dismissed on 21st November 2025. 10. This explanation raises serious legal issues especially the issue of a claim proceeding when the claimant is deceased if true and proved. Despite the relative delay in filing this application, the explanation given by the applicant is plausible and reasonable. I would therefore exercise my discretion and allow the application to file an appeal out of time and in any case not less than 14 days from the date of this ruling in default, the orders herein will stand vacated. Costs to abide the outcome of the appeal. **Dated, Signed and Delivered Virtually at Nairobi this 26th Day of June, 2026.** **HELLEN WASILWA** **JUDGE**