1. Before this court for determination is an application dated 24th April, 2025 brought under rule 11, 12, 18 and 21 of the Employment and Labour Relations Court (Procedure) Rules, Article 159(2)(d) of the Constitution of Kenya and all other enabling provisions of the laws of Kenya. The Appellant seeks for orders that:
a) The application be certified as urgent, heard on priority basis and service thereof be dispensed with in the first instance.
b) Pending hearing and determination of this application inter-parties there be an order of stay of execution of the judgment and decree of the Hon. Peter Areri, Senior Principal Magistrate, delivered in MCELRC/E002/2022 (Mirriam Nyaboke Oanda vs Moi Teaching and Referral Hospital) on 13/3/2025.
c) Pending hearing and determination of the intended appeal there be an order of stay of execution of the judgment and decree of the Hon. Peter Areri delivered in MCELRCE002/2022 (Mirriam Nyaboke Oanda vs Moi Teaching and Referral Hospital) on 13/03/2025.
d) That this honourable court be pleased to enlarge time within which the applicant should file its appeal and be allowed to file its memorandum of appeal out of time.
e) That upon granting of prayer four (4) herein above, the memorandum of appeal filed herein on 25th April, 2025 be deemed to have duly been filed.
f) The costs of this application be in the appeal.
2. The application is premised on the grounds set out on the face thereof and the supporting affidavit of Dr. Benjamin K. Tarus (PhD) the Appellant’s Senior Director, Administration and Finance sworn on 24th April, 2025. In summary, the Appellant states that it is a national referral hospital funded by the government through its internally generated revenue and capable of depositing the necessary security should it be required to do so, that the judgment sought to be appealed was delivered on 13th March, 2025 and the period for filing appeal lapsed on 12th April, 2025, that the Applicant’s counsel did not receive instructions to lodge appeal within the stipulated period due to internal approval processes until after the deadline had lapsed, that the Appellant’s counsel promptly filed the instant application upon receipt of instructions and filed a memorandum of appeal on 25th April, 2025 only 12 days out of time, that the delay is neither deliberate nor inordinate and is reasonably explained, that the memorandum of appeal demonstrates an arguable appeal, that no prejudice will be occasioned upon the Respondent and that the application should be allowed in the interest of justice.
3. It is further the Appellant’s plea that should orders of stay of execution not be granted the appeal would be rendered nugatory as the substratum of the appeal would be extinguished, that it will not be possible to recover the decretal amount should the appeal succeed after execution as the Respondent has no known means of income and the whereabouts of the Respondent and her asset portfolio remain unknown to the Appellant and as such prospects of her refunding the decretal amount are minimal. That the Appellant would therefore suffer substantial loss should the orders of stay of execution not be granted.
4. The application is opposed by the Respondent who filed a replying affidavit sworn on 9th May, 2025 in which she contends that the application before the court is misconceived, vexatious, frivolous, an afterthought, incompetent and an abuse of court process. She avers that the sole purpose of the application is to delay the execution, that the Appellant has not sufficiently explained the cause of delay, that there is no appeal to support the application, that the application has been brought in bad faith, that the Appellant has not explained the nature of irreparable loss it would suffer or how the appeal would be rendered nugatory, that the financial ability of the Respondent is not a reason for allowing the application and the rights of the Appellant must be balanced with those of the Respondent, that there is no demonstration of likelihood of success of the appeal, that should the court be inclined to grant the application the Appellant should be directed to pay half of the decretal amount to the Respondent and the balance be deposited into a joint interest earning account in the names of advocates for the parties within 30 days.
5. The Respondent deposes that extension of time is not a right of a party but an equitable remedy that is only available to a deserving party at the discretion of the court.
6. The application was disposed of by way of written submissions. Both parties filed submissions which I have considered.
Determination
7. The issues for determination flowing from the application, affidavits and submissions on record are whether the Appellant meets the threshold for enlargement of time for filing appeal, whether the Appellant meets the threshold for grant of stay of execution and who should pay costs of the application.
8. On the issue whether the Appellant meets the threshold for enlargement of time the Appellant submitted that section 79G of the Civil Procedure Act provides that appeals from subordinate courts be filed within 30 days from the date of the decree or orders appealed against excluding any period the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order provided that the appeal may be admitted out of time if the appellant satisfies the court that it had good and sufficient cause for the delay in filing the appeal in time.
9. It is submitted that Order 50 rule 6 of the Civil procedure Rules provides for the enlargement of time upon such terms as justice of the case may require.
10. The Appellant further submits that Rule 80 of the Employment and Labour Relations Court (Procedure) Rules provides for extension of any time prescribed in the rules or by a court.
11. The Appellant further submitted that from the wording of section 79G of the Civil Procedure Act, before the court considers any extension of time, the applicants must satisfy the court that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited v William Muthamna Kitonyi (2018] eKLR where the court held that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
12. It was submitted that the Supreme Court in the case of Nicholas Kiptoo Korir arap Salat v IEBC and 7 Others[2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that: -
“The underlying principles a court should consider in exercise of such discretion should include: -
a) Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e) Whether there will be any prejudice suffered by the respondent if the extension is granted;
f) Whether the application has been brought without undue delay.
13. That similarly in the case of Paul Musili Wambua v Attorney General& 2 Others [2015]eKLR, the Court of Appeal in considering an application for an extension of time and leave to file the Notice of Appeal out of time stated the following: -
“... it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
14. The Appellant submitted that as stated in the supporting affidavit of Dr. Tarus, judgment was delivered on 13th March 2025 in the absence of parties, that the Appellant learned about the delivery of the judgment on 21st March, 2025 and downloaded it from the e-filing portal. That due to internal approval processes of the Appellant, counsel did not receive instructions to lodge appeal until after the prescribed time had lapsed. That it promptly thereafter filed the memorandum of appeal and the application for stay as rule 21 of the ELRC (Procedure) Rules provides that the application for stay be lodged in the appeal file.
15. For the Respondent it is submitted that the Appellant was aware of the date of judgment but failed to attend court on both 11th and 13th March, 2025, that the delay of 42 days from the date of delivery of judgment is not only inordinate but also deliberate as it is the duty of litigants to follow up and give instructions to their advocates.
16. The Respondent invokes authority of the case of Josephine Lunde Matheka v Gladys Muli [2018] eKLR, quoted in the case of Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS NO. 397 of 2002, where Kimaru, J (as he then was) expressed himself as follows:
“Whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former advocate's failure to attend court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case...”
17. Similarly, the Respondent submitted, the court in the case of Neeta Gohil v Fidelity Commercial Bank Limited [2019) eKLR, stated that;
“........it is correct to state that where the circumstances of the case merit, mistakes of an advocate should not be visited on the clients when the situation can be remedied by costs. However, it is not in every case that a mistake committed by an Advocate would be a ground for setting aside orders of the Court…”
18. The Respondent submitted that the rules do not set out the number of days that may be considered to constitute undue/inordinate delay. That each case is determined on its own merits as was held in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet (2018) KECA 701 eKLR wherein the court of Appeal opined as follows:
“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretion favour. There has to be valid and clear reasons upon which discretion can be favourably exercised.”
19. It was the Respondent’s submission that the Appellant has not shown sufficient reasons as to warrant the exercise of the Court's discretion to enlarge time in its favour. That the Appellant was granted 30 days stay which it squandered and did not file any appeal.
20. It was submitted that equity aids the vigilant not the indolent, that the Appellant slept on its right to appeal and only woke up on the 42nd day after the delivery of the judgement.
21. The Respondent submitted that the excuse for the delay given by the Appellant's advocates that the delay was occasioned by lack of instructions from the Appellant is vague and the Appellant has not adduced any documentary evidence to prove this.
22. As was stated in the case of Andrew Kiplagat Chemaringo (supra), delay must be sufficiently explained. In the instant case the application was filed 12 days after judgement which was delivered in the absence of the parties, a fact that the Respondent has not denied. The Dr. Tarus further explains that he did not obtain instructions to lodge appeal until 22nd April, 2025 and the appeal was lodged on 25th April, 2025.
23. It is my view that the delay of 12 days has been sufficiently explained by the Appellant. The Court takes judicial notice that the Appellant being a large hospital has several levels of authority necessary to get instructions to appeal.
24. On the second issue whether the Appellant meets the threshold for grant of orders of stay of execution, Order 42 Rule 6 of the Civil Procedure Rules, 2010 provides as follows;
“(1)No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2)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; and
b. 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.”
25. An Applicant must thus demonstrate: -
a. that substantial loss may result to the applicant unless the order is made
b. that the application has been made without unreasonable delay
c. offer security as the court orders for the due performance
26. There is no doubt that there is a judgment in favour of the Respondent against the Appellant. There is therefore likelihood that should the orders of stay not issue, the Respondent may execute against the Applicant. The Appellant has submitted that the Respondent has no known means of refunding the decretal amount should the Appellant be compelled to pay the same to her. The Respondent did not dispute this averment in her replying affidavit. Should execution happen, there is no guarantee that the Respondent would be in a position to refund the same should the appeal succeed. I am thus satisfied that this is likely to occasion substantial loss to the Applicant. I am therefore persuaded that substantial loss has been established.
27. As to whether the Application has been filed without undue delay, I have already stated above that 12 days delay was not inordinate in the circumstances of this case.
28. With regard to the issue of security for due performance, the Appellant is a government institution and is exempted from the requirement to deposit security by virtue of Order 42 Rule 8 of the Civil Procedure Rules which provides:
“No such security as is mentioned in rules 6 and 7 shall be required from the Government or where the Government has undertaken the defence of the suit or from any public officer sued in respect of an act alleged to be done by him in his official capacity.”
29. Further, section 21(4) of the Government Proceedings Act provides:-
“Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.”
30. Flowing from the above I find that the Appellant has satisfied this court on the requirements for grant of both expansion of the time for filing appeal and grant of orders of stay of execution pending hearing and determination of the appeal as stipulated under Order 42 Rule 6 of the Civil Procedure Rules.
31. Consequently, I allow the application dated 24th April, 2025. The costs of this application shall be borne by the Appellant in any event, irrespective of the outcome of the Appeal.
DATED, SIGNED AND DELIVERED VIRTUALLY
THIS 11TH DAY OF DECEMBER, 2025.