https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1048

Hotel & another v Mose & 13 others (Civil Appeal (Application) E880 of 2022) [2026] KECA 1048 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1048 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E880 of 2022 JO Okello, JA May 29, 2026 Between Mang Hotel 1st Appellant Timothy Kinuthia 2nd Appellant and Peter Kimeu Mose 1st Respondent Joseph Nthiwa Nzioka 2nd Respondent Anthony Kariuki Gichohi 3rd Respondent Sylvester Kyalo Mution 4th Respondent Anne Wambui Wanyoike 5th Respondent Cyrus Mwaura Mbugua 6th Respondent Lillian Wambui Gachoka 7th Respondent William Thiani Kithuka 8th Respondent Stanley Githinji Mwangi 9th Respondent James Anguku Ndakala 10th Respondent Martin Nzioka Kitumbi 11th Respondent Judy Mweru Gathogo 12th Respondent Francis Munyevi Ndonye 13th Respondent Joseph Kariuki Rugiri 14th Respondent (An application for leave to amend the Memorandum of Appeal from the ruling of the Employment and Labour Relations Court at Nairobi (M. Mbaru J) delivered on 27th October, 2022 in ELRC Cause No. 267 of 2014) Ruling 1.Before me is a Notice of Motion dated 29th December, 2025, brought pursuant to Rule 16(1) & (2) and 46(2) of the Court of Appeal Rules, 2022, Article 159(2) of the Constitution and all enabling provisions of the law. The appellants/applicants are seeking leave to amend their memorandum of appeal, have the appeal reinstated on the filing of the amended memorandum of appeal, that orders staying execution be reinstated, and costs be provided. 2.This application is based on the grounds stated on the face of it together with the supporting affidavit sworn on 29th December, 2025 by Timothy Kinuthia, the 2nd applicant. 3.A brief synopsis of the matter is that the respondents were employees of the 1st appellant/applicant with the 2nd appellant/applicant being the Managing Director thereat. The respondents filed a claim dated 24th February, 2014 in the ELRC on grounds that they were persistently being underpaid, not paid for overtime worked, never granted accrued leave days, their statutory deductions i.e., N.S.S.F and N.H.I.F were never remitted to the requisite authorities, not paid on public holidays and lack of rest days as provided under the Employment Act, 2007. In their prayers, they urged the superior court that the applicants pay all the money owed totaling to Kshs. 36,010,244; that the appellants/applicants remit all the deducted NSSF and NHIF to the respective Authorities; that the applicants arrange and grant the respondents their rest days, pay overtime and pay the respondents as per Legal Notice No. 197 of 2013 and that the applicants pay the costs of the suit. 4.During the hearing, the parties recorded a consent dated 30th May, 2014 as follows —i.The appellants/applicants shall refund unremitted NSSF dues to the respondents;ii.The appellants/applicants shall pay amounts in salary underpayment to be agreed upon within the next seven days from the date hereof;iii.The appellants/applicants shall issue certificate of service to all claimants;iv.The court to rule on the issues of overtime, off days and uniform charges; andv.The appellants/applicants to tabulate the respondents’ redundancy dues within the next seven days from the date hereof; counsel for the parties to agree on mode of payment of the agreed claims. 5.On 19th June, 2015, the superior court delivered a judgment in favour of the respondents awarding them a sum of Kshs. 4,417,422/=. Subsequently, the parties executed a consent which highlighted the terms of the settlement and which consent, was filed before the superior court on 28th January, 2016. The 1st appellant proceeded to release the settlement amount agreed upon to the respondents and proceeded to close the business in believing that no further claim lay against them. The respondents then filed an application dated 27th January, 2022 seeking for orders that the firm of Wangari Ndirangu Advocates be enjoined in the suit as a respondent to enable the court determine the issue of the consent and that the court be pleased to expunge the consent dated 27th January, 2016 which the firm had entered into without the approval of the respondents. The court on 27th October, 2022 ruled that a consent dated 28th January, 2016 was not an order of the court and had no consequence on the face of the instant application seeking that it be expunged. The court entered judgment in favour of the respondents for payment of Kshs. 4,417,422. 15 with costs and interests at court rates from the date of the award and until payment in full. 6.On the admitted Kshs. 2 million which had been paid to the initial advocate on record, the superior court held that the balance is due and owing with costs and interests at court rates from the date of the award until paid in full. 7.The appellants/applicants then filed a notice of motion dated 7th October, 2019 seeking among other things that the consent judgment dated 27th January, 2016 and filed on 28th January, 2016 be deemed as adopted by the superior court and that the court grant a stay of execution issued by the superior court on 1st October, 2019 pending the hearing and determination of the instant application. In its ruling dated 27th February, 2020, the superior court held that the consent dated 27th January, 2026 remained an agreement between the parties and was not a judgment of the court. The court also confirmed the stay pending filing of fresh application in relation to the consent after enjoining the firm of Wangari Ndirangu and Company Advocates as per the ruling of 2nd May, 2029. 8.The appellants/applicants have now brought this application on grounds that their memorandum of appeal was struck out due to a technicality, and further that the respondents’ may proceed with execution which will render the appeal nugatory. They have filed their written submissions dated 16th February, 2026 together with a list of authorities of the same date. The application is opposed. The respondents filed their submissions dated 15th April, 2026 and their lists of authority dated 15th April, 2026. 9.The firm of Akolo Wanyanga & Company Advocates is on record for the appellants/applicants. The firm of Lucy Wanjiru & Company Advocates is on record for the respondents. 10.Hearing of this application was by way of written submissions. 11.The appellants/applicants have identified four issues for determination including whether leave should be granted to amend their memorandum of appeal; whether the appeal should be reinstated on filing of the amended memorandum of appeal, whether the orders of stay of execution should be reinstated and whether costs should be awarded. 12.On whether leave should be granted to amend the memorandum of appeal, the appellants/applicants submit that a memorandum of appeal is amendable like any other pleadings to correct defects and allow adjudication on merits. They rely on Order 42 Rule 3 of the Civil Procedure Rules which provides that the appellant may amend his memorandum of appeal without leave at any time before the Court gives directions under Rule 13. Sub rule (2) then provides that after the time limited under sub rule (1) the court may, on application, permit the appellant to amend his memorandum of appeal. 13.The applicants further rely on the case of Uhuru Highway Development Ltd vs Central Bank of Kenya [2002] 1EA 314 (CA) where the court stated that a memorandum of appeal, subject to the interest of justice, is always amenable to amendment. The applicants submit that they had filed appeal No. E880 of 2022 within time but the same was dismissed on a technicality on grounds that it contained issues of a ruling to which they had not filed a notice of appeal. 14.On the second issue on whether the appeal should be reinstated on filing the amended memorandum of appeal, the appellants/applicants submit that the court has jurisdiction to reinstate an appeal which has been struck out for procedural irregularity. They submit that this power aligns with the overriding objective of doing justice and ensuring appeals do not fail on technicalities where meritorious grounds exists and justice demands it. They rely on the case of Kenei vs Keya & 2 Others [2024] KEHC 10123 (KLR). 15.As to whether the orders staying the execution should be reinstated, the applicants submit that once the appeal is reinstated and regularized, the Court should similarly reinstate the stay of execution previously granted, subject to such terms and security as the court deems fit to protect the interest of the parties. 16.On the issue of costs, the applicants submit that the error was inadvertent and that the relief sought is in furtherance of the substantive right to appeal and thus it is fair and equitable that costs be provided for, or be ordered to abide the outcome of the appeal. They close their submissions by submitting that the court has wide unfettered discretion which it should exercise in favour of the appellants/applicants, that the defect that led to the striking out of the memorandum of appeal was purely procedural, inadvertent, and curable by amendment, and does not go to the substance of the appeal. They urge the Court that in the interest of justice, the appellants/applicants should be granted leave to amend the memorandum of appeal, that the attendant stay orders be reinstated, and that the matter proceeds to be heard and determines on its merits. They further submit that there is no prejudice that will be occasioned to the respondents that cannot be adequately compensated by costs. 17.The respondents have opposed the application. Vide their submissions dated 15th April, 2026, they have identified only one issue for determination that is whether there is an appeal before the court. They submit that their application dated 8th February, 2024 seeking an order that the memorandum of appeal be struck out for want of jurisdiction as there was no notice of appeal, was allowed by consent on 26th November, 2025. They further submit that the court directed the appellants/applicants to file a fresh appeal under Rule 4 of the Court of Appeal Rules. They state that the applicants have not complied with the directions of the court. 18.The respondents further submit that there is no appeal to enable the court grant the orders being sought. There is no notice of appeal which confers jurisdiction to the court, and that this is a question of jurisdiction not just an issue of technicality. They close their submissions by urging the court to dismiss the application with costs because there is no appeal before the Court, that the Civil Appeal No. E880 of 2022 no longer exists. 19.I have considered the notice of motion, the supporting affidavit, the submissions of both parties, and the law. Only a single issue is identified for determination that is, whether there is an appeal in to be amended. 20.From the application, the appellants/applicants are seeking leave to amend their memorandum of appeal, that the attached memorandum of appeal be deemed to have been duly filed on payment of the assessed sum; that this appeal be reinstated on the filing of the amended memorandum of appeal and that the orders of the stay of execution be reinstated. 21.In their application dated 29th December, 2025, the appellants/applicants state that they filed appeal No. E880 of 2022 within time but the same was dismissed on a technicality having contained issues of appeal of a ruling made by Hon. Justice Wasilwa to which they had not filed a notice of appeal to the said ruling delivered on 27th February, 2020. The same was struck out on 26th November, 2025. In their supporting affidavit sworn by the second respondent, they deposed that the ruling that is the subject of this appeal was made on the 27th October, 2022 by the learned judge Monica Mbaru, and that a notice of appeal was filed on the same day. 22.They further deposed that for including matters for which a notice of appeal was not filed, the application to strike out. 23.In response, the respondents have submitted that there is no appeal so there is nothing to amend. 24.Having reviewed the law and the parties’ submissions, the only issue for determination is whether there is an appeal. From the record of appeal presented, it is clear that the appellants/applicants had filed an appeal No. E880 of 2022. The respondents vide application dated 8th February, 2024 applied for the appeal to be struck out for among other things lack of a notice of appeal. Subsequently, the application dated 8th February 2024 was by consent, allowed. It is not in contention that the appeal was struck out. Indeed, both parties in their submissions have alluded to this fact and further noted that the Court had directed the appellants/applicants to file their appeal in accordance with the Court of Appeal Rules, 2022. The appellants/applicants have not disputed this fact. This being the case, there is no appeal on record to amend. The moment the parties recorded a consent to allow the respondents application dated 8th February, 2024, the memorandum of appeal in E880 of 2024 was erased from the Court records. In the circumstances, this Court cannot grant orders to operate in a vacuum as there is no appeal to amend or otherwise. It is my humble view that upon the striking out of the memorandum or record of appeal for technical reasons, the memorandum of appeal no longer exists. Accordingly, the proper procedure would be that the appellants should have filed an application for extension of time thereby making it clear that their original notice of appeal in the superior court is still meant to be there (See Kenya Commercial Bank vs Mwanzau Mbaluka & Another [1997] KECA 418 (KLR). Thus, since there was a valid notice of appeal in respect of the ruling of learned Judge Monica Mbaru, the appellants ought to have approached the Court under rule 4 of this Court’s Rules to be allowed to file their appeal out of time. 25.Consequently, the Notice of Motion dated 29th December, 2025, is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY, 2026.DR. J. O. OKELLO...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar