https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1992

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E209 OF 2024** *(Before D. K. N. Marete)* **CHRISTINE NYAMBURA GITHII & KIARIE KARIUKI T/A KIARIE KARIUKI & GITHII CO. ADVOCATES…………………………….…APPELLANT/RESPONDENT** **VERSUS** **JOYCE NAFULA CHICHI…………………………….…RESPONDENT/APPLICANT** **RULING** This is a ruling on an application by way of Notice of Motion dated 11th October, 2024. It is brought under Article 159(1)(2)(b) of the Constitution of Kenya, 2010 and Sections 3(1) and 12(4) of the Employment and Labour Relations Court Act, 2011. This is besides Section 79G of the Civil Procedure Act and Rules 8(1)(2) and 17(1)(2)(8) of the Employment and Labour Relations Court (Procedure) Rules, 2016. The application seeks an order that the Memorandum of Appeal dated 31st January, 2024 be dismissed or struck out *in limine* for want of jurisdiction as well as provision for the costs of the Appeal and the Notice of Motion. The application is supported by the affidavit of Joyce Nafula Chichi sworn on 11th October, 2024. The Appellant/Respondent has in opposition to the application sworn and filed a Replying Affidavit with Respondent/Applicant filing written submissions dated 5th March, 2025 and supplementary submissions dated 30th January, 2026. The Appellant/Respondent has filed written submissions dated 25th November, 2025 in answer. The background to this matter comes out thus: The impugned decision was delivered on 17th January, 2024 in Milimani Chief Magistrate’s cause No. MCELRC E2112 of 2021. The Appellant/Respondent thereafter caused to be drawn, executed and uploaded onto the Judiciary Case Tracking System (CTS) a Memorandum of Appeal dated 31st January, 2024 and her advocates on record, Kinoti & Kibe Company Advocates, caused payment of filing fees in the sum of Kshs. 1,000.00 to be made on the same date via M-PESA to the Judiciary Paybill under Invoice Reference Number E3BTNKG6. The official receipt, however, bears the date 26th July, 2024 on which date the case number ELRCA/E209/2024 was also formally generated by the CTS. The Respondent/Applicant contends that the appeal was therefore filed on 26th July, 2024 some five months and ten days outside the prescribed thirty-day period. The Appellant/Respondent contends that the operative date of filing was 31st January, 2024 when the document was uploaded and payment made, and that the delayed issuance of the receipt and case number was attributable to a system-side verification backlog entirely outside their control. The Respondent/Applicant submits that it is trite law that a document is not properly filed in court until the applicable filing fees have been paid and that the date of filing is the date on which payment is received by the court. She relies on the authority of **UNTA Export Ltd v Custom (1970) EA 648 and Margaret Musango v Francis Mugongo (1979) HCB 226** and contends that since the Judiciary E-Filing System records payment as having been received on 26th July 2024, that is the operative date of filing, rendering the appeal time-barred and this court without jurisdiction. She further relies on **Republic v Public Procurement Administrative Review Board & 2 others [2013] eKLR** for the proposition that the Appellant’s explanation regarding the system verification process is hearsay and inadmissible in the absence of an affidavit from the system administrators or registry staff. By supplementary submissions, the Respondent/Applicant further challenges the admissibility of the *viva voce* testimony of Amos Kimani, ICT Officer of the Employment and Labour Relations Court given on 16th October, 2025 on the grounds that he failed to produce a technical report and a certificate of electronic production of the documents he relied upon, contrary to Sections 63(2)(d)(3), 65(5)(c)(6)(8), 78A(3) and 106B(4) of the Evidence Act, Chapter 80, Laws of Kenya and that he failed to make an oath or affirmation before testifying, contrary to Section 17(a) of the Oaths and Statutory Declarations Act, Chapter 15, Laws of Kenya. The Appellant/Respondent submits that the Memorandum of Appeal was timeously filed on 31st January, 2024 within the thirty-day window. She relies on the testimony of Amos Kimani, who confirmed that the Memorandum of Appeal was uploaded and filed on the Judiciary CTS on 31st January, 2024 and that Invoice Reference Number E3BTNKG6 for Kshs. 1,000.00 was generated on that date; that payment was received in Judiciary Account No. 1144918693 at Kenya Commercial Bank on 31st January, 2024. A receipt issued on 26th July, 2024 reflected a technical error on the CTS that did not speak to the actual date of filing. They seek to rely on the authority of **Kenya Orient Insurance Company Ltd v Mwangi & Another (Civil Appeal 152 of 2024) [2025] KEHC 10686 (KLR) (17 July 2025)**, **Ngigi v Momai Investments Limited (Civil Appeal E100 of 2022) [2023] KEHC 17344 (KLR) (12 May 2023)**, and **Motel Schweitzer v Thomas Edward Cunningham & Another [1955] 22 EACA 252** for the proposition that a document is duly filed when lodged at the appropriate registry and the prescribed fee paid. Without prejudice, she invokes Section 96 of the Civil Procedure Act, which confers on the court discretion to allow late payment of filing fees at any stage of proceedings. This court has carefully considered the application, the rival affidavits, the submissions of both parties and the evidence adduced. The central question for determination is whether the Memorandum of Appeal was filed within the prescribed thirty-day period. Rule 8(1)(2) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Section 79G of the Civil Procedure Act require that an appeal from a subordinate court to this Court be filed within thirty days from the date of delivery of the decision appealed against. The impugned decision was delivered on 17th January, 2024. The thirty-day period accordingly lapsed on 16th February 2024. The determinative question is therefore whether the filing fees were paid on 31st January, 2024 or on 26th July, 2024. The Respondent/Applicant’s own exhibit JNC 1 shows that Invoice Reference Number E3BTNKG6 was generated on 31st January, 2024 at 17:35:46 with a receipt date of 26th July 2024. The Appellant/Respondent’s exhibit CNG-1(a) and (b) comprises M-PESA transaction confirmation messages reflecting a confirmed payment of Kshs. 1,000.00 to the Judiciary Paybill under account E3BTNKG6 at 5:38 PM on 31st January, 2024. This evidence is uncontroverted as to the authenticity of the transaction. Amos Kimani, the court’s ICT Officer, who testified on 16th October, 2025 confirmed that the Memorandum of Appeal was uploaded and filed on the CTS on 31st January, 2024 and that the filing fees were received in the Judiciary bank account on the same date. The issuance of the official receipt on 26th July, 2024 was a technical error on the CTS that did not reflect the actual date of filing. The Respondent/Applicant challenges the admissibility of Mr. Kimani’s testimony on two grounds, first, that he testified without taking an oath or affirmation contrary to Section 17(a) of the Oaths and Statutory Declarations Act, Cap. 15, Laws of Kenya and secondly that he failed to produce a certificate of electronic production as required under Section 106B(4) of the Evidence Act, supra. On the oath issue, the court record does not affirmatively confirm that Mr. Kimani was sworn in prior to testifying. Ordinarily, testimony given without oath attracts no legal weight, as the purpose of the oath is to impress upon the witness the solemnity of the occasion and to subject him to liability for perjury. However, this Court notes that Mr. Kimani’s evidence on the CTS filing date is entirely corroborated by independent M-PESA transaction records that are not dependent on his testimony for their validity. The M-PESA confirmation in exhibit CNG-1(a) and (b) is a third-party electronic record generated by Safaricom at the time of the transaction and is not susceptible to the same objection. The oath defect in Mr. Kimani’s testimony therefore goes to weight rather than admissibility in the particular circumstances of this case, and does not displace the unchallenged M-PESA records. The court is nonetheless alive to the procedural irregularity and notes that witnesses before the Employment and Labour Relations Court are required to be properly sworn or affirmed before testifying. On the certificate issue, the court notes that Mr. Kimani was called not primarily to tender electronic documents as exhibits but to explain, as a court officer with operational knowledge of the CTS, how the system functions. The certification requirements under Section 106B(4) of the Evidence Act, *supra*, are directed at the admission of computer-generated documents as documentary evidence. They do not preclude expert oral testimony by a system officer about the operation and known deficiencies of a system he administers. To the extent that any documents tendered through Mr. Kimani require certification, the defect in certification does not affect the admissibility or weight of the corroborating M-PESA records tendered independently by the Appellant/Respondent. The Respondent/Applicant’s admissibility objections are accordingly not determinative of the central factual question. The law as stated in **Kenya Orient Insurance Company Ltd v Mwangi & Another (Civil Appeal 152 of 2024) [2025] KEHC 10686 (KLR)** is that a document filed in court shall be held as validly filed upon payment of the requisite fees. The payment confirmation to the correct court account on a given date constitutes evidence of payment on that date, notwithstanding any administrative delay in the formal issuance of a receipt. To hold otherwise would be to penalise a litigant for an internal administrative deficiency entirely outside their control. This position is consistent with the authorities in **Ngigi v Momai Investments Limited [2023] KEHC 17344 (KLR)** and the East African Court of Appeal in **Motel Schweitzer v Thomas Edward Cunningham & Another [1955] 22 EACA 252** to the effect that an appeal is not instituted until the record of appeal is lodged and fees paid. The anomaly in the case numbers ELRCA/E207/2024 and ELRCA/E208/2024 bearing the same receipt date of 26th July, 2024 as ELRCA/E209/2024, while bearing sequential numbers that precede it, is consistent with the explanation that a system-side administrative backlog caused delayed generation of receipts and case numbers across multiple files simultaneously, and does not establish that the filing itself was late. Having considered the application, the rival affidavits, the submissions of both parties, and the evidence adduced, this court is satisfied that the Memorandum of Appeal was filed on 31st January, 2024 within the thirty-day statutory period and that this Court has jurisdiction to entertain the appeal. The Appellant/Respondent has on a balance of probabilities established the operative filing date to be 31st January, 2024. The Notice of Motion seeking to strike out the Memorandum of Appeal is therefore not meritorious. On costs, the application, while ultimately unsuccessful, raised a genuinely arguable point arising from a real anomaly in the Judiciary CTS records. It was not frivolous. In the circumstances, this court finds that each party should bear their own costs of the application. I am therefore inclined to dismiss the application and order as follows; 1. The Notice of Motion dated 11th October, 2024 be and is hereby dismissed. 2. The Memorandum of Appeal dated 31st January, 2024 is upheld as timeously filed and that this court has jurisdiction to hear and determine the same. 3. The Applicant shall bear the costs of the application. 4. The Appellant is awarded sixty (60) days to make, file and serve a Record of Appeal. 5. Mention on 30.09.2026 for confirmation of compliances and directions of this court. Delivered, dated and signed this **15th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** **Appearances:** 1. Mr. Gachuba instructed by Mwaniki Gachuba Advocates for the Respondent/Applicant. 2. Mr. Mwathe instructed by Kinoti & Kibe Company Advocates for the Appellant/Respondent.