[2024] KEELRC 1104 (KLR)
The court found that the application for leave to appeal out of time was not brought inordinately late and that the reasons for the delay—lack of notice of the ruling and unavailability of the court file due to the magistrate's transfer—were excusable. The court was satisfied that the applicant acted diligently upon...
Source-derived case information.
- Citation
- [2024] KEELRC 1104 (KLR)
- Parties
- Applicant: Martin Wamalwa Wanyonyi; Respondent: Seneca East Africa Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Appeal E178 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Application allowed.
- Judges
- NJ Abuodha
- Legal Topics
- Extension of Time, Stay of Execution, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Wamalwa Wanyonyi
Applicant
Seneca East Africa Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time.
- 2 Whether a stay of execution on the order of costs should be granted pending appeal.
Ratio Decidendi
The court found that the application for leave to appeal out of time was not brought inordinately late and that the reasons for the delay—lack of notice of the ruling and unavailability of the court file due to the magistrate's transfer—were excusable. The court was satisfied that the applicant acted diligently upon learning of the ruling and that the typed proceedings were ready. Consequently, the court exercised its discretion to allow the application for extension of time and granted a stay of execution on the issue of costs pending the outcome of the appeal.
Court Disposition
Application allowed.
Orders
- The applicant shall file and serve the record of appeal within 30 days from the date of this ruling.
- There will be a stay of execution on the issue of costs in the lower court pending the outcome of the appeal.
Full Case Text
Judgment text and source record
23 paragraphs
Wanyonyi v Seneca East Africa Limited (Appeal E178 of 2023) [2024] KEELRC 1104 (KLR) (9 May 2024) (Ruling)
Neutral citation: [2024] KEELRC 1104 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Appeal E178 of 2023
NJ Abuodha, J
May 9, 2024
Between
Martin Wamalwa Wanyonyi
Applicant
and
Seneca East Africa Limited
Respondent
Ruling
1. Through an application filed on 10th September, 2023 the applicant sort orders on the main that this Court grants the applicant leave to appeal out of time and further that the Court grants stay of execution on the order of costs.
2. The application was brought on grounds that the ruling intended to be appealed from was delivered by the trial court without notice to the parties. More particularly that the ruling on the preliminary objection dated 20th February, 2023 was delivered in favour of the respondent on 28th July, 2023 without prior notice to the parties. Further that the applicant only learnt of the ruling on 31st August, 2023 after which the applicant wrote to the Chief Executive Officer to acquire a certified copy of the ruling and proceedings.
3. The applicant further stated that the delay in lodging the appeal was occasioned by the fact that the court file was not in the Court premises for over 30 days from the date of the delivery of the ruling as the learned Magistrate was on transfer to another station.
4. From the record, the trial court’s ruling intended to be appealed from was delivered on 28th July, 2023. The application herein was filed on 18th September, 2023. One of the principal considerations in an application for extension of time is diligence on the part of the applicant. That is to say, was the application brought inordinately late? The other major consideration is the cause for the delay.
5. The Court has reviewed and considered the application herein in the light of the above and is persuaded that the application has not been brought inordinately late and the reasons for the delay are excusable. The applicant has further stated that the typed ruling and proceedings are ready.
6. The application is therefore allowed on terms that the applicant shall file and serve the record of appeal within 30 days from the date of this ruling. Meanwhile there will be stay of execution on the issue of costs in the lower court pending the outcome of the appeal herein.
7. Costs shall abide the outcome of the appeal.
8. It is so ordered
Dated this 9th day of May, 2024Delivered this 9th day of May, 2024Abuodha Nelson JorumJudge1RULING Appeal E178 of 2023