https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1851

Wanyonyi v G4S Ltd (Appeal E043 of 2026) [2026] KEELRC 1851 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1851 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E043 of 2026 M Mbarũ, J June 30, 2026 Between Francis Wanyonyi Appellant and G4S Limited Respondent Ruling 1.The respondent, G4S Limited, filed an application dated 4 June 2026 under section 12 of the Employment and Labour Relations Act and rule 13 of the Employment and Labour Relations Court (Procedure) Rules. The respondent is seeking orders:i.The memorandum of appeal filed on 10 February 2026 be struck out for being served out of time.ii.Costs of this application and of the appeal be awarded to the respondent. 2.Samuel Mwendwa supports the application and advocates for the respondent, who avers that the appellant filed the memorandum of appeal on 10 February 2026. Pursuant to rule 13 of the Employment and Labour Relations Court (Procedure) Rules (ELRC Rules), the appellant was required to serve the memorandum of appeal on the respondent within 21 days from the date of filing. The rule is peremptory and fundamental to the appeal process. The memorandum of appeal should therefore have been served on the respondent on or before 3 March 2026 but was served out of time on 25 March 2026. 3.The appellant failed to take essential and mandatory steps within the prescribed period, thereby rendering the appeal fatally defective. There being no countervailing exceptional issue shown to excuse the delay, it is just and proper that the memorandum of appeal be struck out with costs to the respondent. There is no reply from the appellant. 4.The respondent submitted that the appellant filed the memorandum of appeal on 10 February 2026. Under rule 13 of the ELRC Rules, the appellant should have served the respondent within 21 days. However, on 25 March 2026, the appellant purported to effect service of the memorandum of appeal and a motion notice for attendance in court on 4 May 2026. 5.It is only after the court attendance that the partial record of appeal was served. 6.Under rule 13 of the ELRC Rules, an appellant should serve the memorandum of appeal within 21 days, and rule 15 allows the filing of a record of appeal within 60 days. In King’ola v Wambugu & 2 others [2023] KECA, the court held that the word shall when used in law, commands in mandatory terms. By failing to serve the memorandum of appeal in time, the appellant failed in procedure and a mandatory provision; hence, the appeal should be struck out as held in Nicholas Kiptoo Arap Korir Salat v Independent and Boundaries Commission & 6 others [2013] KESC that procedural rules give important directions in litigation. Hence, article 159 of the Constitution should not be used to shield inaction where the procedure is addressed under the law and the Rules thereof. Determination 7.The appellant did not respond to the instant application. The appellate opted to address the petition. This is a fatal error. 8.The respondent has raised a fundamental procedural question. Service of the memorandum of appeal out of time. 9.The appeal herein arises from the judgment delivered in Nairobi (Milimani) MCELRC E1074 of 2023 delivered on 29 January 2026. Under section 17 of the ELRC Act, the appellant had 30 days to file an appeal, which was done by filing a memorandum of appeal on 10 February 2026. 10.Once the court was seized of the appeal, under rule 13 of the ELRC Rules, the respondent in the appeal should be served within 21 days from the date of filing the appeal:"A memorandum of appeal shall be served upon the respondent within twenty-one days from the date of filing." 11.It is not in dispute that the appellant served the respondent with the memorandum of appeal on 25 March 2026. 12.Under order 50 of the Civil Procedure Rules and rules 13 and 15 of the ELRC Rules, the 21 days from 10 February 2026 lapsed on 13 March 2026. 13.Indeed, as the respondent submitted, the ELRC Rules are flexible and very permissive. Under rules 12, 15 and 18 of the ELRC Rules, a party is allowed 60 days to file an appeal and serve within 21 days, then serve the record of appeal within 60 days, and, if unable, to seek more time to file the record of appeal out of time. 14.Why then would the appellant file an appeal in time and fail to serve the respondent in time? The answer can only be one. The appellant did not want the respondent to know the existence of the appeal. 15.However, parties attended court on 8 May 2026, and the respondent's counsel was present. Hearing directions issued and the appellant was allowed more time to file a complete record of appeal. The issue of non-compliance with rule 13 of the ELRC Rules should have been addressed at that time. Once served with the memorandum of appeal out of time on 25 March 2026, the respondent should have seized the moment to secure its rights and file the instant application. 16.The court has since mentioned the matter, allowing the appellant additional time to file the complete record of appeal. The appellant has since filed written submissions. The appeal was filed in time, save for the lapse in serving the same in time. 17.In the interests of justice, the court will address the appeal on the merits. Save for the clarification above, the appellant shall meet the costs of this application. Application dated 4 June 2026 is thus addressed. DELIVERED IN OPEN COURT THIS 30TH DAY OF JUNE, 2026.M. MBARŨJUDGEIn the presence of:Court Assistant: Samuel Maruga……………………………………… and …………………………………………