1. The Applicant filed application dated 26th May,2023 which is brought under section 12 of the Employment and Labour Relations Court Act,2011 Rule 17 of the Employment and Labour Relations Court Rules,2016 and section 3A of the Civil Procedure Act.
2. The Application seeks an order to release part of decretal sum of Kshs 5,000,000/=(Shillings Five Million) and any interest accruing thereof deposited in joint interest earning account at Stanbic Bank, Upper hill Branch Account Number 0100008519336.
3. That the same amount of Kshs 5,000,000/= and any interest accrued be transferred to the Claimant’s/Applicants advocates bank account, Nyabena Nyakundi & Co. Account Number.014000045486 at Family Bank of Kenya Cargen House Branch for onward transmission to the Claimants.
4. The Application was supported by affidavit of Harisson Kiambi Mwendwa one of the Claimants/Applicants herein who averred that the court delivered judgment on 11th November,2020 in their favour ordering the Respondent to pay terminal dues owed to them.
5. The Applicants averred that the Respondent through its advocates filed a notice of Appeal dated 11th November,2020 indicating their dissatisfaction with the court’s judgment. The Respondent also moved the court vide an application dated 23rd March,2021 seeking stay of execution of the decree arising out of the Judgment pending hearing of the intended appeal.
6. The Applicants averred that the court in its ruling ordered stay of execution on condition that the Respondent deposited the decretal sum as security in a joint interest earning account in the name of advocates. That the Respondent having lodged a notice of appeal had failed to institute an appeal to date.
7. The Applicants averred that the intended appeal by the Respondent should have been lodged within 60 days from the date of lodging the notice of appeal or from the date the court proceedings were made available to the Respondent. That the Court by a letter dated 29th August,2022 addressed to the Respondent’s Advocates and copied to their advocates indicated that the Proceedings were ready for collection upon payment of the court fees.
8. The Applicants averred that the delay, failure and neglect on the Respondent amounts to abandoning the intended appeal and the Respondent is deemed to have withdrawn the Notice of Appeal. That Section 3A of the Civil Procedure Rules 2010 confers upon this court inherent power to avoid an injustice or stop an abuse of the court process which the Respondent in this case is keen at propagating by unreasonable and unjustified delay in filing the appeal.
9. The Applicants averred that the unreasonable delay continues to prejudice their right to enjoy the fruit of the Court’s Judgment and further that the Respondent had lost interest in lodging the Appeal almost 3 years after judgment was entered and ought to stop enjoying stay orders granted by this court without any efforts or attempts to lodge an appeal.
10. The Applicants swore a further affidavit sworn by their Advocate Alfred Nyabena on 26th May,2023 where he averred that he confirmed from the court records that the firm of J.A Guserwa received the letter dated 29/8/2022 from Deputy Registrar of this court on 31/8/2022 and duly signed for the same. That from the date of notification of the typed proceedings the Respondent has not filed the Appeal or record of appeal in the court of Appeal. That the Respondent should be deemed to have withdrawn his appeal since 60 days lapsed.
11. In reply the Respondent filed its Replying Affidavit sworn on 29th August,2023 and confirmed that the typed proceedings were ready by 29th August,2022.
12. The Respondent averred that the delay in filing the intended Appeal was because its advocates changed offices in September, 2022 and their file got misplaced. That to cure that default their advocates filed an application in the court of Appeal seeking extension of time to file the appeal.
13. The Respondent prayed that the Kshs 5,000,000/= deposited in a joint interest earning at Stanbic Bank, Upperhill Branch Account Number 0100008519336 therefore should not be released to the Applicants. That the Applicants application should not be allowed as it lacks merit and they have arguable appeal.
DETERMINATION
14. In this instant case it is not in dispute that judgment was delivered in this matter on 11th November,2020 which is over three years now. In addition, the Respondent filed its notice of appeal on 11th November,2020. The Respondent made an application for stay orders in March 2021 where the court issued its directions allowing the stay of execution until hearing and determination of intended appeal together with a security for costs of Kshs 5,000,000/= to be deposited in a joint interest earning account.
15. It is also clear that the Respondent complied with the directions of the court in depositing the security for cost in a joint interest earning account of Kshs 5,000,000/=. The Applicants request the same to be released to their advocates together with any interest earned. This is because the Respondent has failed to lodge any appeal.
16. The Respondent has also not disputed receiving the notification that the certified typed proceedings were ready as of 29th August,2022. The Respondent attributes the delay to their advocates moving offices and their file getting misplaced.
17. The Court notes that the application seeking extension of time to file the appeal is dated 29th August, 2023 the same date the Replying Affidavit to this application was sworn. The same is filed on 4th September, 2023. This is a whole year after the proceedings were ready for collection.
18. It is the law that an Appeal ought to have been filed 60 days after a notice of appeal is filed or proceedings were ready. In this case one goes by when the proceedings were ready which was 29th August ,2022. Further, a whole year is quite a long time where either the Respondent or its Advocates ought to have followed up this issue. There was further no evidence that the respondent attempted to contact the advocate for the claimant to explain her predicament.
19. The Court is further inclined to think that the Respondent is taking it for a ride since it makes the application for extension of time the same day they do their response to the present application hence most likely an afterthought.
20. It is therefore an injustice to the Applicants who have waited for over three years to enjoy the fruits of their judgment. yet the Respondent is not moved to expedite the intended appeal. Further, the respondent is deemed by operation of law to have withdrawn its appeal when the timelines set expired.
21. In conclusion the Court finds the application merited and grants the same as prayed.
22. It is so ordered.
Dated at Nairobi this 26th day of January, 2024
Delivered virtually this 26th day of January, 2024
Abuodha Nelson Jorum
Judge