[2020] KEELRC 1492 (KLR)
The court found that the applicant's Memorandum of Appeal did not raise any new or valid issues for determination, as the matters had already been addressed in previous rulings. The applicant failed to provide any plausible reason for not appealing within the statutory timelines, and his submissions were irrelevant...
Source-derived case information.
- Citation
- [2020] KEELRC 1492 (KLR)
- Parties
- Applicant: Boniface Mutua Kitungu; Respondent: Peter Mwaura Kamau t/a Mwaura Kamau & Co. Advocates
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1509 of 2015
- Procedural Posture
- Cause / Ruling on Memorandum of Appeal
- Outcome
- Memorandum of Appeal dismissed with costs to the respondent.
- Judges
- MSA Makhandia
- Legal Topics
- Appeal Out of Time, Dismissal of Suit, Costs Award, Frivolous Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Mutua Kitungu
Applicant
Peter Mwaura Kamau t/a Mwaura Kamau & Co. Advocates
Respondent
Procedural Posture
Cause / Ruling on Memorandum of Appeal
Legal Issues
- 1 Whether the applicant's Memorandum of Appeal is properly before the court and raises any valid grounds for consideration.
- 2 Whether the applicant is entitled to leave to appeal out of time.
- 3 Whether the applicant's repeated applications amount to abuse of court process.
Ratio Decidendi
The court found that the applicant's Memorandum of Appeal did not raise any new or valid issues for determination, as the matters had already been addressed in previous rulings. The applicant failed to provide any plausible reason for not appealing within the statutory timelines, and his submissions were irrelevant to the legal questions at hand. The court held that there were no valid proceedings before it and that the continued filing of such applications was frivolous and vexatious. Consequently, the Memorandum of Appeal was dismissed with costs to the respondent to deter further abuse of the court process.
Court Disposition
Memorandum of Appeal dismissed with costs to the respondent.
Orders
- The Memorandum of Appeal filed on 25 October 2019 is dismissed.
- The applicant shall pay costs of Kshs 2,000/- to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1509 OF 2015
(Originally Milimani CMCC No. 1418 of 2007)
BONIFACE MUTUA KITUNGU....................................................CLAIMANT
VERSUS
PETER MWAURA
KAMAU t/a MWAURA KAMAU & CO. ADVOCATES........RESPONDENT
RULING NO. 2
1. On 15 July 2019 this Court delivered a Ruling in which it dismissed an application by Boniface Mutua Kitungu (applicant) seeking: the setting aside of the orders given on 21 November 2014 in CMCC No. 1418 of 2007, and the setting aside of the orders given by this Court on 28 January 2019 dismissing the Cause.
2. Undeterred, the applicant filed in Court on 25 October 2019 what he called a Memorandum of Appeal.
3. The Memorandum of Appeal seeks to challenge a Ruling by the Chief Magistrates Court delivered on 10 August 2007, and dismissal by the same Court of the applicant’s suit on 21 November 2014.
4. On 22 January 2020, the Court directed the parties to file and exchange submissions in respect to the Memorandum of Appeal.
5. The applicant filed his submissions on 27 January 2020 while the Respondent filed his submissions on 5 February 2020.
6. The Court has given considerable attention to the submissions by the applicant. They relate majorly to issues which are alien to the purported Memorandum of Appeal. What the applicant has discussed in the submissions are his exploits and achievements as a student and employee as a Security Officer by an unnamed hotel.
7. The Court has also relooked at the record.
8. The complaints and issues raised by the applicant in the Memorandum of Appeal were extensively discussed in the Ruling of 15 July 2019 and need not be rehashed herein.
9. Just for the benefit of the applicant, he has all along been aware that the Chief Magistrates’ Court dismissed his suit in 2007, and that this Court differently constituted (as well as this Court) have previously explained to him in minute detail that there are no valid proceedings before this Court for consideration.
10. If at all the applicant was seeking leave to appeal out of time, the Court finds no merit in such application as there has been no plausible reason why the applicant did not appeal within the timelines prescribed for Appeals under the applicable statutory regime.
11. In order to deter the applicant from filing frivolous and vexatious applications, the Court will dismiss the Memorandum of Appeal filed in Court on 25 October 2019 with costs of Kshs 2,000/- to the Respondent.
Delivered, dated and signed in Nairobi on this 28th day of February 2020.
Radido Stephen
Judge
Appearances
Applicant in person
For Respondent Mr. Momanyi instructed by Gachoka & Co. Advocates
Court Assistant Lindsey