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JudgmentVITALIS OTIENO OSAWO VS CHUNA CO-OPERATIVE SAVINGS & CREDIT SOCIETY LIMITED2 min read

VITALIS OTIENO OSAWO VS CHUNA CO-OPERATIVE SAVINGS & CREDIT SOCIETY LIMITED

Employment and Labour Relations Court at Nairobi Employment and Labour Relations Court (ELRC) · · J. N. Abuodha

Summary

The court dismissed an application for leave to file an appeal out of time and stay of execution against a judgment. The applicant sought orders under Order 42 Rule 6(1) and Order 51 Rule 1 of the Civil Procedure Rules, but the court held it lacked jurisdiction to extend time for filing an appeal as the Court of Appeal is the appropriate body to grant such extensions under Rule 4 of its Rules. The court also found the applicant's request for stay of execution without merit, noting the applicant approached the court when the appeal time had lapsed and the Court of Appeal has the authority to grant stay under Rule 5(2)(b). The application was dismissed with costs.


1. By a Motion dated 17th December, 2019 the respondent/applicant sought for orders among others that the Court grants the applicant leave to file an appeal out of time against the judgment of this Court delivered on 27th September, 2024. The applicant further and in the interim sought stay of execution of the Court’s judgment.
2.  The application was purportedly brought under Order 42 Rule 6(1), Order 51 Rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act.
3. The decisions of this Court are appealable at the first instance to the Court of Appeal. Rule 4 of the Court of Appeal Rules provides as follows:
The Court may, on such terms as may be just, by order, extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.

4.  This Court therefore does not have jurisdiction to extend time for filing an appeal to the Court of Appeal. The Court of Appeal being the Court that will hear the appeal if admitted, is the one best placed to entertain an application for extension of time and if merited allow the same.
5. On the issue of stay under Order 42 rule 6, the applicant contends that it will suffer substantial loss if the stay order is not granted and that the application has been made without unreasonable delay. Counsel argues that the decretal sum is substantial and the respondent’s financial ability to refund the amount if the appeal is successful is uncertain. Counsel in that regard relied on the case of Kenya Shell Ltd vs. Kibiru & Another [1986] eKLR. The applicant further stated that it was willing to abide by any conditions the Court might impose before granting stay of execution.
6. As much as this Court has jurisdiction to grant stay of execution on such terms it may deem fit to impose, in this case the applicant has approached the Court when the time allowed by the Rules to appeal against its judgment had long lapsed and the Court as already said does not have jurisdiction to extend the time for filling an appeal once it has lapsed. That power is vested on the Court of Appeal under Rule 4 of that Court’s Rules. The Court’s hands are therefore tied and cannot grant stay of execution. However all is not lost. The respondent/applicant can still move the Court of Appeal under Rule 5(2)(b) of that Court’s Rules for stay of execution.
7. In conclusion the application dated 17th December, 2024 is found without merit and is hereby dismissed with costs.
8. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division