https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1981

West Kenya Sugar Company Limited v Omanga (Miscellaneous Case E001 of 2026) [2026] KEELRC 1981 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1981 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kakamega Miscellaneous Case E001 of 2026 DN Nderitu, J July 9, 2026 Between West Kenya Sugar Company Limited Applicant and Jeremiah Omanga Respondent Ruling I. Introduction 1.In a Notice of Motion application dated 6th 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 lodge an appeal out of time against the Judgment by Hon. Angeline Odawo dated and delivered on 25th June 2025 in Kakamega ELRC Cause No. E072 of 2021 – Jeremiah Omanga v West Kenya Sugar Company Limited between the Applicant and the Respondent herein.iii.That this Honourable Court be pleased to grant leave to extend the time within which the Applicant is to file and serve a Memorandum of Appeal against the Judgment by Hon. Angeline Odawo dated and delivered on 25th June 2025 in Kakamega ELRC Cause No. E072 of 2021 – Jeremiah Omanga v West Kenya Sugar Company Limited.iv.That this Honourable Court be pleased to extend the stay of execution of the whole Judgment/Orders of the Judgment by Hon. Angeline Odawo dated and delivered on 25th June 2025 in Kakamega ELRC Cause No. E072 of 2021 – Jeremiah Omanga v West Kenya Sugar Company Limited pending the hearing and determination of the Appeal to this Court.v.That upon grant of leave to appeal out of time, the Memorandum of Appeal and Record of Appeal lodged herein be deemed as duly filed.vi.That the Honourable Court be pleased to grant such further or other Orders as it may deem just and expedient in the circumstances of this case.vii.That the costs of this application do abide the outcome of the intended appeal. 2.The application is expressed to be founded on Article 159 of the Constitution, Sections 1A, 1B & 95 of the Civil Procedure Act, & Order 42 Rule 6 & Order 51 Rule 1. It is based on the grounds on the face of it. 3.The application is supported with the affidavits sworn by Eunice A. Owuor, the Manager, Legal and Insurance Services, and Marvin Forester Otieno, Counsel for the Applicant, both on 6th January 2026, with several annexures thereto. 4.In response to the application, the Respondent filed a Replying affidavit sworn by himself on 16th February 2026 with several annexures thereto. 5.On 20th January 2026 when the matter came up in court for directions, the court directed that the application be canvassed by way of written submissions. Mr. Otieno for the Applicant filed written submissions dated 26th March 2026 and Miss Onyango for the Respondent filed written submissions dated 19th May 2026. II. The Evidence 6.In the supporting affidavits the deponents state that the Applicant is dissatisfied with the judgment delivered by Hon. Angeline Odawo on 25th June 2025 in Kakamega ELRC Cause No. E072 of 2021 – Jeremiah Omanga v West Kenya Sugar Company Limited and intends to challenge the same on appeal. 7.It is deposed that upon delivery of the judgment, the trial court granted the Applicant a 30-day stay of execution pending granting of leave to appeal. Counsel immediately applied for certified copies of the judgment and proceedings in order to advise the Applicant on the prospects of filing an appeal. 8.It is stated that on or about 14th July 2025, a Government directive compelled the Applicant to temporarily suspend its operations, thereby affecting its ability to issue instructions to counsel. Following the resumption of operations, the Applicant resolved to pursue an appeal, following internal consultations that took some time resulting in further delay. 9.Counsel deponed that upon receiving instructions to file an appeal on 26th August 2025, he mistakenly filed Kakamega High Court Miscellaneous Application No. E137 of 2025, seeking leave to file an appeal out of time. The application was subsequently withdrawn after the High Court held that it lacked jurisdiction to entertain the matter. Counsel admits the error and urges the Court not to visit his mistake upon the Applicant. 10.It is maintained that the delay was inadvertent, occasioned by a Government directive; the delay in obtaining court proceedings; internal consultations; and, excusable error by Counsel as explained above. It is further contended that the intended appeal is arguable and has high chances of success and, that the certified proceedings have now been obtained enabling preparation of a complete record of appeal for filing without further delay. 11.The Applicant expresses apprehension that unless the stay of execution is extended, the Respondent may execute the decree thereby rendering the intended appeal nugatory. The Court is urged to exercise its discretion and enlarge time as prayed to ensure the filing of the appeal out of time. It is stated that the Applicant is willing to comply with any conditions imposed by the Court. It is pleaded that the application is brought in good faith, without unreasonable delay, and in the interests of justice. 12.In the replying affidavit, the Respondent is opposed to the application, contending that the Applicant had knowledge of the judgment immediately upon its delivery and obtained a certified copy thereof on 26th June 2025. It is deposed that typed proceedings were not required to file a memorandum of appeal and that no sufficient explanation has been given for the delay. 13.It is further deposed that despite relying on the directive by the Government suspending sugar milling operations, Counsel for the Applicant actively participated in other court matters involving the Applicant during the same period. The delay is termed as inordinate, unexplained and, only intended to further delay execution of a lawful decree. 14.The Respondent further stated that the internal consultations, closure of operations, and counsel's mistake do not constitute sufficient cause. It is deposed that after the application in the High Court was withdrawn for want of jurisdiction, the Applicant waited for over three months before filing the present application. 15.The Respondent maintains that the Applicant has not demonstrated diligence or good faith, that he continues to suffer prejudice by the delay, denying him the enjoyment of the fruits of the judgment. 16.The Court is urged to dismiss the application with costs. III. SUbmissions 17.Counsel for the Applicant submitted on three issues – Whether the Applicant has provided a satisfactory explanation for the delay to warrant the exercise of this court’s discretion to enlarge time; Whether this Honourable Court should grant leave to the Applicant to file the Appeal out of time and the Memorandum of Appeal be deemed duly filed; and Whether the Honourable Court should grant the stay of execution pending hearing and determination of Appeal. 18.On the first issue, Counsel submitted that the same was occasioned by the Government directive suspending the Applicant's operations and the mistake by Counsel initially filing the application before the High Court instead of the ELRC. It is argued that such inadvertent error should not be visited upon the Applicant. In buttressing this assertion, Counsel cited Philip Keiptoo Chemwolo v Augustine Kubende (1986) eKLR. 19.On leave to appeal out of time, Counsel cited a plethora of decisions – Mombasa County Government v Kenya Ferry Services & Another (2019) eKLR, Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) eKLR, and Philip Keiptoo Chemwolo v Augustine Kubende (supra), in submitting that the Court has unfettered discretion to extend time, guided by the length and reason for delay, the arguability of the appeal and, prejudice to the parties 20.Counsel further submitted that the intended appeal is arguable as it challenges the trial court's finding that the Respondent was on an indefinite contract instead of a fixed-term contract and, the award of the maximum 12 months' compensation without sufficient justification. It is submitted that an arguable appeal need only raise at least bona fide issue for determination. 21.On stay of execution, Counsel submitted that the Applicant has satisfied the requirements of Order 42 Rule 6 of the Civil Procedure Rules citing Butt v Rent Restriction Tribunal (1982) KLR 417 in support. It is contended that execution shall render the intended appeal nugatory as the decretal sum of KShs483,000 plus costs may not be recoverable if the appeal ultimately succeeds. The Applicant is ready and willing to comply with any orders on security that the Court may impose. 22.Counsel, therefore, urged the Court to allow the application, arguing that the delay in filing of the appeal was neither intentional nor inordinate but the same arose from operational disruptions and procedural error by Counsel. The Applicant pleaded that the interests of justice favour a determination of the intended appeal on merits. 23.On the other hand, Counsel for the Respondent submitted on the following issues – Whether the Applicant has established sufficient cause for extension of time to appeal; Whether the delay is inordinate and unexplained; Whether the Applicant has approached the court in good faith; and, Whether the Respondent shall suffer prejudice if the orders sought are granted. 24.It is submitted that the Applicant has failed to satisfy the principles governing extension of time to allow the filing of an appeal. 25.Counsel submitted that an equitable remedy of extension of time is available only to a deserving litigant and that the Applicant has failed to provide a reasonable explanation for the delay. It is argued that the Applicant had knowledge of the judgment immediately after its delivery through the Court Tracking System (CTS) platform and that typed proceedings were not necessary for the filing of a memorandum of appeal. Counsel cited Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR in buttressing this assertion. 26.Counsel further submitted that the delay of over six months is inordinate and unexplained. It is argued that the alleged shutdown of the Applicant's operations did not prevent the filing of an appeal, as Counsel for the Applicant continued participating in proceedings and litigation involving the Applicant. Counsel also contends that after withdrawing the earlier application in the High Court the Applicant delayed for a further three months before filing the present application without explanation. 27.Counsel submitted that the Respondent continues to suffer prejudice for the delayed settlement of the decretal sum, increased costs of litigation but any prejudice to the Applicant is self-inflicted. 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 affidavits in support, the replying affidavit, and submissions by counsel for both parties. The following issues are 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) 35Rules 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 excuse of the shutdown of the Applicant’s milling operations was not a bar to instructing Counsel to file an appeal. It is further stated that the Applicant had previously filed an application for leave to appeal out of time in High Court Miscellaneous Application No. E137 of 2025, which was withdrawn on 2nd October 2025, yet the present application was filed three months later without any explanation for the delay. 38.It is urged that the Applicant was deliberately intended to deny the Applicant the fruits of the judgment by delaying the filing of the appeal on time, making an Application in the wrong court, and now filing this belated application in this court. 39.The Applicant attributes the delay in filing the appeal to the closure of its milling operations by the Government and the mistake by Counsel initially filing the application in the High Court, which had no jurisdiction to entertain the application. The Applicant argued that the typed proceedings are ready for the filing of the record of appeal alongside the memorandum of appeal. 40.The court has perused the application and noted that the impugned judgment was delivered on 25th June 2025. Thereafter, the Applicant requested to be supplied with the certified copy of the judgment and proceedings in a letter dated 30th June 2025. Through a Notice of Motion dated 1st September 2025 in Kakamega High Court Miscellaneous Application No. E137 of 2025, the Applicant sought leave to file the appeal out of time and for stay of execution. It has been confirmed by the parties that the application filed in the High Court was withdrawn on 2nd October 2025 and the present application filed three months later on 6th January 2026. 41.The court notes that after the judgment in the lower trial court was delivered, the Applicant filed Kakamega High Court Miscellaneous Application No. E137 of 2025, but the same was withdrawn on 6th October 2025. The application sought for identical orders to those sought herein. The instant application was filed six months and 12 days after the judgment was delivered. The Applicant has explained that the delay in filing the appeal was occasioned by the lack of instructions during the closure of the Applicant’s operations and the mistake by its Counsel in filing the application in the wrong court. 42.The Court notes that the Applicant, upon being served with the judgment and decree, was intentional and took steps to file an application seeking extension of time for filing an appeal out of time. The Court finds and holds that the Applicant indeed took steps, albeit in the wrong forum. The court takes the view that the delay is excusable as the same has been reasonably explained. 43.While no draft memorandum of appeal was attached to the application, the Applicant has expressed that it wishes to appeal against the entire judgement. The court is persuaded to allow the application on the conditions set out below, including securing the decretal sum. 44.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. Further, if the intended appeal ultimately fails the Respondent shall be compensated by way of costs and interest on the decretal sum. VI. Stay Of Execution 45.The Applicant further seeks for 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. The Applicant has expressed that it is ready to comply with any conditions set by the Court for the grant of stay. 46.The jurisprudence on the grant for stay of execution pending appeal is now somewhat 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. 47.The courts are now enjoined to give effect to the overriding objective in the exercise of their powers under the Civil Procedure Act or in the interpretation of any of its provisions. Courts are now as always bound to rendering substantive justice as opposed to following strict rules of procedure and restrictive interpretation of the law. 48.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.” 49.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. 50.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. 51.A copy of the judgment intended to be appealed is attached to the application. The judgment ordered the Respondent to pay to the Applicant compensation of Kshs483,000/= for unlawful termination. 52.The Respondent has not given evidence on his ability to repay the decretal sum in case the appeal ultimately succeeds, in response to depositions by the Applicant that they shall suffer substantial loss if stay is not granted. 53.Considering all the circumstances, and in order not to render the intended appeal nugatory and as well as to giving effect to the overriding objectives cited above, the court shall grant the stay of execution pending the filing, hearing, and determination of the intended appeal on the conditions spelt out below. 54.The court finds and holds that delay in execution shall not amount to a denial of the Respondent’s right to enjoy the fruits of the judgement. Moreover, the Applicant is ready and willing to comply with any conditions set by the court on security for the due performance of the decree and on costs. VII. Orders 55.The court thus orders as follows –i.The application dated 6th January 2026 is merited and is hereby allowed.ii.The Applicant shall file the intended appeal and serve the record of appeal within 30 days of this ruling.iii.The Applicant shall deposit the entire decretal sum of Kshs483,000/= in court within 30 days of this ruling.iv.In default of either (ii) or (iii) above, the leave granted shall automatically lapse.v.Costs of this application to the Respondent in any event. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 9TH DAY OF JULY 2026.....................................DAVID NDERITUJUDGEELRC KAKAMEGA