Introduction
1 By an application dated 16th July 2024, expressed to be under Order 42[6] and Order 50[6] of the Civil Procedure Rules, Section 3A and 79G of the Civil Procedure Act and all enabling Provisions of the Law, the Appellant/ Applicant seeks;
i. That the Application be certified as urgent and service be dispensed with in the first instance.
ii. That pending the hearing and determination of this application, the Honourable Court do grant a temporary order of stay of execution.
iii. That pending the hearing and determination of the Appeal, this Honourable Court be pleased to stay the judgment entered herein on 11th June 2024 in Mombasa and any other order that may be issued pursuant thereto, pending the hearing of the Appeal.
iv. THAT the Honourable Court be pleased to extend time for filing of Memorandum of Appeal and deem the Memorandum of Appeal lodged on 12th July 2024, and served on the Respondent on 16th July 2024 as properly filed.
v. That costs incidental to this application abide by the appeal's result.
2 The application is anchored on the grounds set out on the face thereof, and the supporting affidavit sworn by Deepak Laxmshanker Vyas on 15th July 2024.
3 The Respondent opposes the application through her replying affidavit sworn on the 22nd July 2024.
The Application
4 The Applicant states that the lower Court entered judgment against it on the 11th day of June 2024 in Mombasa CMELRC No. 503 of 2018- Jackson Kaasya Kimolo v Vyas Hauliers Limited. Aggrieved by the judgment, it lodged an appeal on 12th July 2024.
5 It is further stated that the appeal was filed a day late due to an oversight in the preparation process.
6 The appeal is arguable and has high chances of success, as it raises substantive points of law.
7 The application has been filed without undue delay, and if it is allowed, the Respondent will not suffer any prejudice.
The Response
8 The deceased filed an employment claim against the Applicant on 17th December 2018. Before the matter could be heard and determined, the Applicant started shifting its operations and attachable known properties to third parties unknown to the deceased.
9 In the circumstances, the deceased was prompted to apply attachment before judgment. The Learned Trial Magistrate did not find in favour of the application.
10 The Deceased’s case was one of a series of suits filed against the Respondent by various employees, in which decrees were obtained against it. The decrees remain unsettled.
11 Extension of time is an equitable remedy; the circumstances of the instant matter militate against its grant in favour of the Applicant.
The Applicant’s submissions
12 Counsel for the Applicant submits that the purpose for which the law provides for a stay of execution pending appeal is preservation of the subject matter in dispute so that the rights of the Appellant who is exercising his undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory. To buttress this submission, reliance is placed on the decision in Nicholas Stephen Okaka & Anor. V Alfred Waga Wesonga[ 2022]eKLR.
13 It is further submitted that in exercise of its powers, this Court should give effect to the overriding objective of the court. To support this point, reliance has been placed on the decision in the Michael Ntouthi Mitheu v Abraham Kivondo Musau[ 2021]eKLR.
14 It is submitted that Order 50 Rule 6 of the Civil Procedure Rules bestows this Court with jurisdiction to enlarge time for doing an act, or taking any proceedings under the Rules or by order of the Court.
15 The considerations to be borne in mind while dealing with an application for extension of time are now trite. They have been expressed in many judicial precedents, including Karny Zaharya &Another v Shalom Levi, Civil Application No. 80 of 2018, and Malindi Silas Kanyalu Mwatha v Josephine Kavine James, Misc. Application No. 19 of 2021, Malindi High Court.
The Respondent’s Submissions
16 The Respondent’s Counsel submits that the Applicant hasn’t come to court with clean hands. On 24th July 2024, this Court ordered a stay of execution of the trial court decree, subject to the Applicant depositing the entire decretal sum in court within 21 days. The Applicant has failed and or neglected to comply with the order. He who seeks justice must be ready to abide by the court’s directions and honour the justice of the other.
17 The Applicant is undeserving of the orders sought.
Analysis and Determination
18 In respect to the prayer for stay of execution this Courts notes from the record that on 24th July 2024, Justice Nzei, ordered that pending the hearing of the instant application, there be a stay of execution of the decree of the lower court subject to the Applicant depositing the entire decretal sum in court within 21 days of the order. The Respondent asserts that the order was not complied with at all. Inexplicably, and I hold deliberately, the Applicant hasn’t bothered to state why the default. It hasn’t sought any enlargement of time for compliance with the order.
19 Courts do not give orders for ornamental purposes, and I take a clear view that the conditional stay wasn’t given for the purpose. An order for a stay of execution of a decree is equitable, and cannot be granted in favour of a person who has approached the court with dirty hands. By approaching the court without complying with the Court’s order, and without explaining the failure, the Applicant has come to court with unclean hands. It is undeserving of the order of stay of execution pending appeal.
20 Admittedly, the appeal herein was not filed within 30 days as required by Rule 12[2] of the Employment and Labour Relations Court [Procedure] Rules, 2024. The Applicant seeks an order for the Memorandum of Appeal already filed to be considered as duly filed. I will now consider whether an extension can be granted.
21 In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court set out the relevant factors to be considered in an application for extension as follows;
“1. Extension of time is not a right of a party. It is an equitable remedy that is only available to the deserving party at the discretion of the court;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time is a consideration to be made on a case-by-case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.
5. Whether there will be any prejudice suffered by the respondents if the extension is granted;
6. Whether the application has been brought without undue delay; and
7. Whether, in certain cases, like election petitions, public interest should be a consideration for extension of time.”
22 Bearing in mind the foregoing considerations, the question that springs up immediately is, did the Applicant sufficiently explain the delay to this Court? In explaining the delay, the Applicant just made what appears to this Court a general statement: that the delay was occasioned by an oversight in the process of preparing the appeal. Without going further to supply specificity regarding the” oversight”, it becomes difficult not to conclude that the reason advanced for the delay is not reasonable and sufficient.
23 Though the delay in filing the appeal was by one day, in the absence of a demonstration of a reasonable and sufficient reason for the delay, I hereby decline to extend time for filing the appeal.
24 By reason of the foregoing premises, the Applicant’s Notice of Motion dated 16th July 2024 is dismissed, and the appeal herein struck out.
25 The costs of the application and the appeal shall be in favour of the Respondent.
26 Orders accordingly.
Dated, Signed and Delivered virtually in Nakuru this 10th day of April, 2024.