The appellant filed an application dated 12 September 2024 seeking an order that the court be pleased to order a stay of execution of the warrants of attachment dated 28 August 2024 of the decree emanating from the judgment delivered on 17 May 2024 in Mombasa CM ELRC E754 of 2021. The orders be issued pending the hearing and determination of the intended appeal.
The application is supported by the affidavit of Stephen Nyamu the regional manager of the appellant and on grounds that following the judgment delivered on 17 May 2024 in Mombasa CM ELRC E754 pf 2021, the appellant is aggrieved and seeks to file an appeal. However, the respondent has moved with execution proceedings and if not stayed, the appeal, which has a high chance of success will be rendered nugatory. The appellant will suffer substantial loss and damage if the stay is not allowed. The decree was issued for the sum of Ksh.416, 300 on 28 August 2024.
Nyamu avers in his affidavit that there is a Memorandum of Appeal filed which demonstrates arguable grounds with a high chance of success. The appellant is ready and willing to abide by any conditions that the court will grant to secure the appeal.
In reply, the respondent filed her Replying Affidavit and aver that the decretal sum is for Ksh.416, 300 plus auctioneer costs and the instant application is filed to frustrate her from enjoying the fruits of the judgment. There is no demonstration of what loss is to be suffered if the stay application is not allowed. She can refund the decretal sum and the application should be dismissed with costs.
Determination
The motion of Order 42 rule 6 relied upon by the appellant is to ensure that a party, desirous of filing an appeal is allowed to do so under the protection that the subject of the appeal will remain pending the hearing and determination of the appeal. On the other hand, a successful party holds a valid order of the court and should be allowed to enjoy the same.
In balancing each party's rights, Order 42 rule 6 has given conditions to be met to assist the court in objectively assessing each application. Rule 6(2) requires that;(
2) No order for stay of execution shall be made under sub rule (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
In this case, the trial court delivered judgment on 17 May 2024. The Memorandum of Appeal in this case was filed on 1st July 2024.
Though the Memorandum of Appeal is dated 3 June 2024, it is filed a day out of the limitation period.
All factors put into account and the best effort to apply the provisions of Order 50 Rule 1, time to file an appeal under the provisions of Section 17 of the Employment and Labour Relations Court Act read together with Rule 8 of the Employment and Labour Relations Court (Procedure) Rules had lapsed. There is no valid appeal upon which the orders sought can find a foundation.
Where the appellant found itself out of time, recourse was under Section 79G of the Civil Procedure Act read together with Rule 8 of this court rules. These provisions are couched in mandatory terms. An appeal to the court must be filed within 30 days from the date the judgment or order is issued. Where the appeal is not filed within time, an applicant is allowed to seek leave and give reasons for the lapse in time as held in Charles Karanja Kiiru v Charles Githinji Muigwa [2017] KECA 131 (KLR) and in the case of Patrick Kiruja Kithinji v Victor Mugira Marete [2015] KECA 872 (KLR).
The Supreme Court pronounced itself in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission &7 others [2014] eKLR as follows;
By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do.
To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court.
In this case, the appeal filed out of time is not tenable.
Great efforts have been put into filing the Record of Appeal but based on an invalid appeal. The respondent did not address this lapse.
Accordingly, the application dated 12 September 2024 is founded on an invalid appeal. The application and the appeal are struck out. No orders on costs.
Delivered in open court at Mombasa on this 31st day of October 2024.
M. MBARŨ
JUDGE