1.By a motion dated October 21, 2022 the Respondent sought orders inter alia:
2.The application was supported by the affidavit of Nelly Agufana Hoyi who deponed on the main That:
3.Both Counsels filed their submissions for and or against the application, which the Court has reviewed and considered.
4.The guiding principle on whether or not to grant an application for leave to appeal out of time is that the intended appellant must satisfy the Court that he or she has sufficient cause for not filing the appeal in time.
5.Further, as was stated in the case of Thuita Mwangi v Kenya Airways Ltd  eKLR the Court takes into account the length of the delay, the reason for the delay, the chances of the appeal succeeding and finally the degree of prejudice to the Respondent if the application is granted.
6.According to the Applicant, it ought to have filed the memorandum of appeal by October 9, 2022 but unfortunately, there who an inadvertent delay of 18 days. The Applicant was not notified of the judgment until September 21, 2022 when they received a letter from their previous advocates on record.
7.Upon perusal of the judgment, the Applicant felt aggrieved and became desirous of appealing. Counsel for the Applicant thus submitted that failure to file their memorandum of appeal within time was not intentional but an inadvertent error.
8.Concerning the success of the intended appeal, the Applicant submitted that the same raised several arguable points with the chances of success. To demonstrate this, Counsel for the Applicant submitted that it is disputed the Respondent was its employee or at all. This according to Counsel was an issue that ought to be argued fully before the Honourable Court.
9.On the issue whether the Court should grant a stay of execution or not. Counsel submitted that the Applicant disputed that the Respondent was its employee hence not entitled to one month pay in lieu of notice and compensation of unfair termination. Therefore if an order for stay of execution was not granted, the Applicant was likely to suffer substantial loss. This was because execution would create a state of affairs that would irreparably affect or negate the essential core of the appeal which would be rendered nugatory.
10.Counsel further submitted that the Respondent had no known means of income hence it would not be easy for them to refund the judgment sum should the intended appeal succeed. Counsel further stated that the Respondent was ready and willing to comply with any order of the Court which may be issued as regards concerning security for costs.
11.Counsel for the Respondent on the other hand submitted that the Applicant had not approached the Court in good faith. According to the Respondent, the Applicant was all along aware of the subordinate Court’s judgment. According to Counsel, the Applicant’s former advocates communicated the judgment on September 21, 2022 barely 12 days after delivery.
12.Further, there was constant communication between the parties including service of the proposed party and party bill of costs. No cause had therefore been shown why the appeal was not processed within the stipulated time. Counsel therefore submitted that the application lacked merit and was not brought in good faith.
14.However in the exercise of such discretion, the Court must act upon reasons not based on whims or caprice. In general the matters which the Court takes into account in deciding whether 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 and the degree of prejudice to the Respondent if the application is granted.
15.The Applicant herein stated that it became aware of the judgment herein on September 21, 2022 when it received a letter from their previous advocates. By the time the process of taking over the matter by the current advocates on record, the time within which an appeal ought to have been filed, had lapsed by some 18 days. The Applicant has further contended that the Respondent was never its employee hence an award of one month’s pay in lieu of notice and twelve month’s salary in as compensation for unfair termination did not arise.
16.The foregoing facts are satisfactory enough to persuade the Court to grant the Applicant leave to file an appeal out of time. The delay is not inordinate and has been reasonably explained. Further, the allegation that the Respondent was never the Applicant’s employee hence not entitled to the award, is serious and requires to be canvassed further.
17.On the issue of stay of execution, this is guided his Order 42 Rules (2) of the Civil Procedure Rules which provides:
18.As observed concerning the issue of extension of time to file the intended appeal, the Court takes the view that application for stay of execution has not been brought unreasonably late.
19.Regarding security for due performance of the decree which the Court may ultimately make, the Court hereby orders that in view of the numeracy of the Claimants herein and the aggregate amount of the award, in order not to tie up the Applicant’s cash resources which it might badly need for its operations, the Court will order that the Applicant executes within 60 days of this ruling, a suitable bank guarantee to the extent of the decretal sum.
20.In conclusion the Court hereby grants the Applicant leave to file an appeal out of time and such an appeal shall be filed within 30 days of this ruling. Secondly stay of execution is hereby granted on terms set out above.
21.This ruling applies and disposes of Cause Misc. Application Numbers 29, 30 and 31 of 2022.
22.It is ordered.