https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1366

Henry v Peerless Logisitics Limited (Appeal E029 of 2025) [2026] KEELRC 1366 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1366 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Malindi Appeal E029 of 2025 K Ocharo, J May 18, 2026 Between Daniel Mugo Henry Appellant and Peerless Logisitics Limited Respondent Ruling 1.By their Notice of Motion application dated 9th December 2025, the Respondent seeks that the appeal herein be struck out for being filed outside the statutory period of 30 days stipulated under Rule 12 of the Employment and Labour Relations Court [Procedure]Rules, 2024 and Section 79G of the Civil Procedure Act. 2.The Respondent states that the impugned ruling was delivered by the lower Court on 14th October 2025. Time for filing an appeal began to run on 15th October 2025 and lapsed on 13th November 2025. 3.The Memorandum of Appeal was lodged by the Appellant on 14th November 2025, one day out of time, without leave of the Court for filing it out of time. As such, the Appeal is incompetent and ought to be struck out with costs. 4.In response to the application, the Appellant through his replying affidavit sworn on 15th December 2025, stated that the ruling the subject matter of the instant appeal was delivered on 14th October 2025. Time for filing of an appeal began to run on 15th October 2025. One calendar month therefore lapsed on 14th November 2025 per the provisions of Order 50 Rule 1 of the Civil Procedure Rules, 2010. 5.The Appeal was filed on14th November 2024, the very date when the statutory period expired, consequently the appeal is properly lodged before this Court. 6.He further contends that assuming the Respondent is correct that the appeal was filed out of time by one day, the delay was very minimal and no prejudice would be suffered by the Respondent if this Court were to indulge the delay. 7.He further states that striking out is a draconian action that should not be engaged in circumstances like those of the instant appeal. Additionally, the Respondent has not demonstrated the prejudice that he has suffered following the filing of the appeal on 14th November 2024. Analysis and Determination. 8.I have carefully considered the Appellant’s application, the grounds upon which it is premise, the affidavit in support thereof, and the respective submissions by the parties’ Counsel, and a sole issue emerge for determination, whether the Application is meritorious. 9.The Respondent submits that undoubtedly, the instant appeal was filed out of time by one day and without leave of the Court. Rule 12[18] of the Employment and Labour Relations Court [Procedure]Rules, contemplates that an appeal filed out of time can only be held to be competently filed, if leave to so file the same was sought and filed. The Appellant sought none. The Appeal is incompetent, therefore. To support these submissions the Respondent places reliance on the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR. 10.The Respondent further submits that the default in not filing the appeal within time and without leave of the Court goes to the substance of the appeal. It is not a mere technicality. As the appeal was not properly instituted, the Court does not have jurisdiction to entertain the same. 11.The Appellant submits that the law for computation of time is settled. Under Order 50 Rule 8 of the Civil Procedure Rules, 2010, the day on which the ruling is delivered is excluded and time begins to run the following day. Therefore, for purposes of this matter, time started to run on 15th October 2025. 12.Additionally, under Order 50 Rule 1 where time is expressed in months, the same is computed in calendar months. One calendar month from 15th October 2025 therefore one calendar month lapsed on 14th November 2025. The appeal having been filed on the 14th of November 2025, was therefore, filed within time. 13.The Appellant further submits that in the event this Court finds that there was a minimal delay in filing the appeal, the Court should not strike out the appeal, in the circumstances of the appeal, and in light of the overriding objective of the court. To support this submission, he places reliance on the Court of Appeal decision in KCB Bank Kenya Limited vs Julius Kirimo [ 2023] KECA 260 [KLR]. 14.Article 159 [2] [d] of the Constitution of Kenya, 2010 commands courts to administer justice without undue regard to procedural technicalities. Rule 18 of the Employment and Labour Relations Court [Procedure] Rules, 2024 empowers this Court to deal with procedural issues in a manner that advances substantive justice rather than defeating it. Striking out an appeal in the circumstances of this case would amount to elevating form over substance. 15.Section 79[G] of the Civil Procedure Act, provides for time for filing of appeals against the decisions by the subordinate courts, thus;“Every Appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the Appellant of a copy of the decree or order.” 16.Rule 12 of the Employment and Labour Relations Court [ Procedure] Rules, provides;“(1)Where a written law provides for an appeal to the Court, an appellant shall file a memorandum of appeal with the Court within the time specified under the written law.” 17.Contrary to the Respondent’s submissions, the time for filing of an appeal from the subordinate court to this court is not provided for in terms of a calendar month, but in specified days. 18.In my view, the law purposively provides for filing of an appeal within a specified number of days, namely thirty days, and not within one calendar month. The distinction is deliberate and significant. Had the intention of the legislature been to compute time in calendar months, nothing would have been easier than to expressly so provide. Instead, the law employs the term “days” thereby requiring a strict and certain computation of time from the date of the impugned decision or order. 19.The rationale behind such formulation is to promote certainty, uniformity, and predictability in the appellate process. A calendar month may vary in duration depending on the particular month involved, whereas a period expressed in days admits no ambiguity. Parties must therefore refrain from substituting the clear wording of the statutes with an interpretation that would effectively alter timelines set by Parliament. To construe thirty days as equivalent to one calendar month would not only offend the plain language of the law, but would also risk be creating inconsistency in the administration of justice. 20.Employing the trite computational formula, of excluding the first day but including the last day, would undoubtedly reveal that the appeal herein was filed out of time by one day. It is apparent that the appeal was so filed following the Appellant’s Counsel’s mis-sighting the correct provisions of the law that provide for a specific number of days for filing of an appeal. 21.Though timelines for the filing of an appeal go to the substance of the matter and cannot be dismissed as mere procedural technicalities, there are circumstances where, in the wider interest of justice, a court may decline to automatically strike out an appeal filed out of time. The court retains the discretionally power to fashion appropriate relief that preserves the right of appeal, particularly where the delay is insignificant, and no prejudice will be occasioned to the opposite party. 22.The overarching duty of the courts is to balance procedural discipline with constitutional imperative of substantive justice. Consequently, where the circumstances so demand, the court may regularize the appeal by granting leave to file the same out of time, or deem the already filed appeal as duly filed upon compliance with specified conditions, instead of resorting to the drastic action of striking it out. 23.In the progressive Court of Appeal decision cited by the Appellant, KCB Bank Kenya Limited vs Julius Kirimo Mwandoro [2023] KECA 260 [KLR], faced with an almost similar situation as is in the instant matter, the Court held;“The question before us is therefore whether we would, in the circumstances of this case, be facilitating the just, expeditious, proportionate and affordable resolution of the already filed appeal by invoking the coercive power of sticking out as prescribed by the rules. Faced with a similar application this Court in the case of Deepak Chamanlal Kamani & another v Kenya Anti-Corruption Commission & 3 others [2010] eKLR reasoned as follows;“What will happen, for example, if we were to strike out the appeal? The common experience is and has always been that whenever an appeal is struck out, the losing party invariably invokes the jurisdiction of the Court under rule 4 of the rules under which the Court can enlarge time within which to file a fresh notice of appeal and a fresh record of appeal. That invariably increases the costs of the litigation. In addition to increasing the costs, since the parties are starting all over again, the time within which am appeal would take to be eventually determined on merit is unnecessarily lengthened. In a case where the party whose appeal has been struck out does not start afresh his appeal would not have been determined on merit at all, and therefore, it cannot really be said that a just determination has been made in the case. These are situations which Parliament must have intended to remedy by incorporating the overriding objective in Sections 3A and 3B of Appellate Jurisdiction Act. Similar provisions have been incorporated in the Civil Procedure Act to cover litigation in the High Court and in Subordinate courts.” 24.The Court proceeded further to state;“……………We think that in the circumstances of this appeal, it would not facilitate the just, expeditious, proportionate and affordable resolution of the appeal if we were to accede to the application. It is our view that there is an alternative available to striking out. This Court had occasion to deal with similar circumstances in Taib & Another v Wekesa & Another [2022] KECA 444[KLR] as follows;“As a result, the undeniable fate of an appeal filed out of time without leave of the court is to be struck out. However, in the interest of justice we hereby suspend the order of striking out the record of appeal for a period of 45 days from the date hereof. Within that period, the Respondent shall file and serve the requisite application for extension of time under Rule 4 of this Court’s rules and in default the appeal will stand struck out with costs to the applicant.” 25.Leave for extension of time to file an appeal may be sought either before the intended appeal is filed or even after the appeal has already been lodged out of time, as contemplated under the architecture of Order 50 of the Civil Procedure Rules. The provisions grant the court wide and discretionary jurisdiction to enlarge time where sufficient cause is shown, irrespective of whether the default has already occurred or is anticipated. 26.Accordingly, the mere fact that an appeal was filed before leave was obtained does not, of itself, render the appeal incurably defective. The court retains the discretion in appropriate circumstances to regularize the process by enlarging time retrospectively and deeming the appeal duly filed, where the interest of justice so requires. It for this reason that I hold the decision in Nicholas Kiptoo Arap Korir v IEBC & 7 Others [2014] eKLR which was not made in the context of Order 50 of the Civil Procedure Rules, not to be helpful to the Respondent’s application. 27.By reason of the foregoing premises, though I find the Respondent’s application meritorious and strike out the appeal herein, I suspend the order striking out the appeal for a period of 10 days from the date of this ruling. Within that period, the Appellant shall file and serve an application for extension of time and in default the appeal will stand struck out with costs to the Respondent. 28.Orders accordingly. READ SIGNED AND DELIVERED THIS 18TH DAY OF MAY 2026.OCHARO KEBIRAJUDGE