Esther Njambi t/a Elister Enterprises v Cornelius Wanjala Makona [2021] KEELRC 1254 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAKURU

MISC APPLICATION NO. E07 OF 2021

ESTHER NJAMBI T/A ELISTER ENTERPRISES.....APPLICANT

-VERSUS-

CORNELIUS WANJALA MAKONA.......................RESPONDENT

RULING

1. This ruling is in respect of the applicant’s application dated 19th April, 2021 filed under certificate of urgency on 20th April, 2021 via the firm of Mukite Musangi & Company advocates pursuant to Order 51 Rule 1 of the Civil procedure Rules, 2010 and Section 79G , 1A, 1B and 3A of the Civil Procedure Act,  seeking the following orders;

1. THAT this matter be certified urgent and be heard ex-parte in the first instance.

2. THAT this Honorable court be pleased to enlarge time and grant the applicant leave to file an appeal out of time against the Judgment/Decree dated 12th March, 2021 in respect of Nakuru CMCC No. 137 of 2017: Cornelius Wanjala Makona vs Esther Njambi t/a Elister Enterprises.

3. THAT upon grant of leave to appeal out of time the Memorandum of appeal lodged herein be deemed as duly filed.

4. THAT pending inter-partes hearing of this application this Honourable court be pleased to issue an order staying execution of the aforesaid judgement/decree.

5. THAT there be stay of execution of the aforesaid Judgment/Decree pending the hearing and determination of such appeal as may be preferred against the said Judgment/Decree upon leave being granted by this Honourable court.

6. THAT the costs of and incidental to this application be costs in the intended appeal.

2. The application is supported by the grounds on the face of the application and the affidavit sworn on 19th April, 2021 by Nasimiyu G. Wekesa, the advocate ceased of this matter, and based on the following grounds: -

a. That, when the judgment was delivered on 12th March, 2021, some of the staff at the firm tested positive for Covid-19 which necessitated immediate closure of their office therefore delaying the filing of the appeal within the requisite time.

b. That the restricted access to the Court made it difficult to Obtain a copy of the judgment and further closure of Nakuru law Court in April for two weeks made it impossible for them to file the application on time.

c. That it is important to grant stay of execution pending appeal as failure to grant stay will render the appeal nugatory.

d. That the Appeal is competent and has appreciable chances of success.

e. That the applicant is willing to comply with this Court direction and to furnish court with security if deem fit.

f. That the Applicant is likely to suffer loss and damage if the application herein is not allowed.

3. In opposing the application, the Respondent, Cornelius Wanjala Makona, swore a replying affidavit dated 3rd May, 2021 and filed in this Court on 4th May, 2021 on the following grounds;

a. That the application is bad in law, made in bad faith, lacks merit, inept and an afterthought which amounts to an abuse of Court process.

b. That he instituted suit number 137 of 2017 at Nakuru chief magistrates Court seeking compensation from an industrial accident which case was heard and judgment delivered on 12th March, 2021 in his favour.

c. That the Notice of entry of judgment was served upon the Applicant’s Advocates seeking to satisfy the decree but they failed to pay the decretal sum.

d. That the applicant had ample time to file this application if she needed to and thus contends that the application herein is a ploy used by the applicant to delay and deny him the fruits of his judgment.

e. That the Memorandum of appeal as annexed herein lacks merit and has no chances of success.

f. That without prejudice to the foregoing, if the court is inclined to allow the application, the entire decretal sum together with costs and interest therein be deposited in an interest earning account in the joint names of the advocates on record for the parties.

4. The parties herein disposed of the application by way of written submissions with the applicant filing on 13th May, 2021 and the Respondent on 24th May, 2021.

Applicant submissions

5. The applicant’s Advocate submitted that the Court has discretion to allow extension of time for a party to appeal out of time as long as the applicant can give an explanation for the delay, demonstrate that the appeal is arguable and prove whether or not the respondent can be compensated adequately by an award of damages, in this he cited the case of First American bank of Kenya ltd –v- Gulab P. Shah  7 2 others Nairobi (Milimani) HCCC No. 225 of 2000[2002] 1EA 65.

6. Counsel submitted that the applicant has explained the reason of delay in the application and urged the Court to exercise its discretion and enlarge time for the applicant to file the appeal out of time. He cited the supreme court decision on Nicholas Kiptoo arap Korir salt –v- independent electoral and boundaries commission & 7 others.

7. On whether the appeal is an arguable one, it was submitted that the appeal raises cogent issues that need the consideration of this Court. Further that the appeal, as has been held in various judicial decision, need not be one that will succeed as long as the same raises arguable issue. He cited the case of Kinyunjuri Muguta –v- Wotuku Muguta [2018] eklr and the case of Joseph Gitahi Gachau & another –v- pioneer holdings (A)Limited & 2others [2009] eklr.

8. Counsel submitted that the respondent can be compensated for any injury that might be visited upon him when the Application is allowed.

9. On the prayer for stay, Counsel cited the Court of Appeal case of Butt –v- Rent Restriction Tribunal [1982] KLR 417 and submitted that the court has power to grant order for stay pending appeal as provided for under Order 42 Rule 6(1) of the civil procedure Rules 2010 and reinforce his argument further by citing the case of Attorney General –v- Okiya Omtatah Okoiti [2019] eklr.

10. With regard to issue of security for costs, it was submitted that the applicant was ready to furnish court with security as will be directed by Court. He thus urged Court to allow the application as prayed.

Respondent’s submissions.

11. The Respondent on the other submitted that the applicant filed this application for extension of time way out of time when they had ample time from the date the judgment was delivered on 12th March, 2021 to 20th April, 2021 more that the statutory 30 days provided for under section 79G of the Civil Procedure Act.

12. It is the respondent’s case that the extension of time is not as of right as was held in Kenya Hotel and allied workers’ union –v- Mada holidays Limited [2021] eklr but that the extension of time can only be granted pursuant to a court discretion after being given cogent reasons for the delay. Accordingly, it was submitted that the reasons given are not backed with any evidence.  Further that the court registries were still in operation and receiving documents as was held in Edwin K. Too –v- Paul K Sitienei [2020] eklr.

13. On whether the draft memorandum of appeal is arguable, it was submitted that the intended appeal has no merit and would only serve to delay the course of justice which is prejudicial to the respondent.

14. On the prayer for stay, it was submitted that the applicant has not demonstrated what loss she will incur if the stay prayer is disallowed.

15. In conclusion it was submitted that the application should be dismissed however if the court is inclined to allow the same the applicant be compelled to deposit the entire decretal sum together with costs and interest in  an interest earning account in the joint names of the advocates on record.

16. I have considered the averments of the parties herein.  The applicants have explained reasons which prevented them from filing their appeal within time being COVID infection of staff and closure of the court.  This court is aware of the facts alleged where even court staff tested positive for COVID necessating closure of the entire court premises.

17. The failure to file the appeal within the requisite period could therefore have emanated from valid reasons.

18. This being the position, I grant leave to the applicants to file their appeal out of time and in any case its not more than 7 days.

19. In the same vain I will allow stay orders pending hearing of the appeal on the ground that the entire decretal sum is deposited in an interest earning account held in joint names of counsels on record within 14 days from today.

20. In default execution to proceed.

21. Costs to abide the outcome of the appeal if at all.

RULING DELIVERED VIRTUALLY THIS 8TH DAY OF JULY, 2021

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:-

Nasimiyu for applicant – present

Saringi for respondent – present

Court assistant – Fred and Wanyoike