[2016] KEELRC 175 (KLR)
The court found that there were no orders issued on 19 February 2016 with which the appellant had failed to comply. The only action taken by the court on that date was to decline to dismiss the appeal after accepting the appellant's explanation for delay in filing the record of appeal. Since the record of appeal had...
Source-derived case information.
- Citation
- [2016] KEELRC 175 (KLR)
- Parties
- Appellant: H. Young & Co. (EA) Ltd; Respondent: Samson Okoth Orengo
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 13 of 2015
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Applications Regarding Record of Appeal and Directions
- Outcome
- Appellant's application for extension of time allowed; respondent's application for dismissal declined; directions issued for further conduct of the appeal.
- Judges
- MSA Makhandia
- Legal Topics
- Appeal Procedure, Record of Appeal, Extension of Time, Directions, Costs, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
H. Young & Co. (EA) Ltd
Appellant
Samson Okoth Orengo
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Applications Regarding Record of Appeal and Directions
Legal Issues
- 1 Whether the appeal should be dismissed for want of compliance with court orders allegedly issued on 19 February 2016.
- 2 Whether the appellant should be granted an extension of time to file and serve the record of appeal.
- 3 What directions should be issued for the further conduct of the appeal.
Ratio Decidendi
The court found that there were no orders issued on 19 February 2016 with which the appellant had failed to comply. The only action taken by the court on that date was to decline to dismiss the appeal after accepting the appellant's explanation for delay in filing the record of appeal. Since the record of appeal had now been filed, the irregularity was cured. The court exercised its discretion to extend and enlarge the time for filing and serving the record of appeal, admitted the appeal, and issued directions for the further conduct of the matter. The respondent's application for dismissal was therefore without merit, and the appellant's application for extension of time was allowed.
Court Disposition
Appellant's application for extension of time allowed; respondent's application for dismissal declined; directions issued for further conduct of the appeal.
Orders
- Time for filing record of appeal extended and enlarged up to 13 December 2016.
- Record of appeal if not yet served to be served before 15 December 2016.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
APPEAL NO. 13 OF 2015
(Originally Naivasha High Court Civil Appeal No. 71 of 2015)
H. YOUNG & CO. (EA) LTD APPELLANT
v
SAMSON OKOTH ORENGO RESPONDENT
(Appeal from the judgment of Hon. P. Gesora (Mr.) Chief Magistrate delivered on 21st May, 2015 in Naivasha CMCC No. 206 of 2014)
RULING
1. The Respondent moved Court through a motion dated 9 August 2016 seeking
1. THATthe Honourable Court be pleased to confirm the dismissal of the Appeal herein for want of compliance of the Orders issued on the 19th of February 2016.
2. THAT in the alternative, the Honourable Court do issue Directions herein.
3. THAT Costs of this application in any event be borne by the Appellant.
2. The Appellant filed a replying affidavit to the motion through its advocate on 20 September 2016.
3. Before the Respondent’s application could be heard, the Appellant filed an application on 26 October 2016 seeking that
1. THAT this application be and is hereby certified as urgent and service of the same be dispensed with in the first instance.
2. THATthis Honourable Court be pleased to extend and enlarge the time for filing the Record of Appeal and that the Record of Appeal filed herein be deemed duly filed and served.
3. THAT the costs of this application be in the cause.
4. The Court has gone through the record and has not found any orders issued on 19 February 2016 which the Appellant was required to comply with.
5. In that regard, the request to confirm dismissal of the appeal cannot be based on a failure to comply with the orders of Court.
6. What the Court did on 19 February 2016 was to decline to dismiss the appeal after the Appellant’s explanation for failure to file a Record of Appeal was accepted.
7. A Record of Appeal has now been filed (on 14 October 2016), and this is an irregularity the Appellant sought to cure through its application of 26 October 2016.
8. The Respondent might also have anticipated this because in the alternative to dismissal of the appeal, he sought for directions.
9. Logically, by giving directions, the Appellant’s application will succeed and in this respect the Court orders as follows
(i) Time for filing Record of Appeal extended and enlarged (if required) up to 13 December 2016.
(ii) Record of Appeal if not yet served to be served before 15 December 2016.
(iii) Appeal is admitted.
(iv) Respondent at liberty to file any appropriate papers before 20 January 2017.
(v) Appellant to file and serve submissions and authorities before 3 February 2017.
(vi) Respondent to file and serve submissions and authorities before 17 February 2017.
10. Court will give a convenient date hereafter for highlighting of submissions if parties so wish.
11. Costs to abide the appeal.
Delivered, dated and signed in Nakuru on this 9th day of December 2016.
Radido Stephen
Judge
Appearances
For Appellant Mr. Musili instructed by Kinyanjui Njuguna & Co. Advocates
For Respondent Ms. Amboko instructed by Wanga Amboko & Co. Advocates
Court Assistant Nixon