[2025] KEELRC 54 (KLR)
The court found that although the Appellants' Record of Appeal did not comply with the required format and omitted certain documents, striking out the appeal at this stage would be disproportionate and contrary to the interests of justice. The court exercised its discretion to allow the Appellants a final...
Source-derived case information.
- Citation
- [2025] KEELRC 54 (KLR)
- Parties
- Appellant: Aaron Mugesan Kaduyu; Appellant: Silah Khamasi Amokola; Respondent: Darford Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E067 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Completeness of Record of Appeal
- Outcome
- Objection dismissed with directions; appeal not struck out at this stage.
- Judges
- L Ndolo
- Legal Topics
- Record of Appeal Completeness, Appeal Striking Out, Procedural Compliance, Service of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Aaron Mugesan Kaduyu
Appellant
Silah Khamasi Amokola
Appellant
Darford Industries Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Completeness of Record of Appeal
Legal Issues
- 1 Whether the appeal should be struck out for failure to file a complete and proper Record of Appeal.
- 2 Whether the Appellants abused the court process by failing to serve all requisite documents and fix the appeal for directions.
- 3 Whether striking out the appeal would be just in the circumstances.
Ratio Decidendi
The court found that although the Appellants' Record of Appeal did not comply with the required format and omitted certain documents, striking out the appeal at this stage would be disproportionate and contrary to the interests of justice. The court exercised its discretion to allow the Appellants a final opportunity to file a comprehensive and complete Record of Appeal, to be agreed upon with the Respondent's counsel before filing. The court emphasized that failure to comply with these directions within twenty-one days would result in the automatic striking out of the appeal without further orders. Each party was ordered to bear its own costs, reflecting the court's view that both sides...
Court Disposition
Objection dismissed with directions; appeal not struck out at this stage.
Orders
- The Appellants shall prepare and serve a fresh comprehensive Record of Appeal to the Respondent's Counsel for concurrence on completeness before filing in court within twenty-one (21) days from the date of this ruling.
- Failure to comply with these directions will lead to automatic striking out of the appeal without further court orders.
Full Case Text
Judgment text and source record
34 paragraphs
Kaduyu & another v Darford Industries Limited (Civil Appeal E067 & E069 of 2022 (Consolidated)) [2025] KEELRC 54 (KLR) (23 January 2025) (Ruling)
Neutral citation: [2025] KEELRC 54 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Civil Appeal E067 & E069 of 2022 (Consolidated)
L Ndolo, J
January 23, 2025
Between
Aaron Mugesan Kaduyu
1st Appellant
Silah Khamasi Amokola
2nd Appellant
and
Darford Industries Limited
Respondent
Ruling
1. This ruling determines the Respondent’s objection raised by Notice of Motion dated 2nd September 2024, seeking that the Memorandum of Appeal herein as consolidated with ELRCA No. 69 of 2022 be struck out.
2. The Motion is supported by an affidavit sworn by the Respondent’s Counsel, Jamuel Mwakandana Kiwinga and is based on the following grounds:a.That the Appellant’s delay in lodging a complete and proper Record of Appeal will prejudice the fair determination of this matter;b.That the Appellant’s failure to fix the appeal for directions is an abuse of the court process;c.That the Appellant’s failure to file and serve all the requisite documents relied upon by the parties before the lower court is an abuse of this court’s process;d.That it is in the interest of justice that the orders sought are granted.
3. In his affidavit in support of the Motion, Counsel for the Respondent, Jamuel Mwakandana, Kiwinga depones that the Appellant filed an incomplete Record of Appeal dated 7th July 2022, which did not contain any of the Respondent’s exhibits relied on before the trial court.
4. Counsel points out that the index in the said Record of Appeal indicates that the Respondent’s exhibits are contained at page 205 in the Record, whereas the entire document has only 204 pages.
5. Counsel further depones that after filing of the incomplete Record of Appeal, the Appellant failed to take any steps to prosecute the appeal prompting the Court to list it for notice to show cause on 28th September 2023.
6. The Appellant did not appear on the said date and the Court fixed the matter for mention on 16th October 2023. On this date, the Respondent stated that it had not been served with a complete Record of Appeal and the Court directed the Appellant to comply within 7 days.
7. Counsel goes on to depone that by 31st January 2024 when the parties appeared before the Court, the Appellant had not complied with the directions issued on 16th October 2023. On the same day, the Appellant served the Respondent with the original Record of Appeal dated 10th June 2022 and a Supplementary Record of Appeal with no attachments.
8. Counsel asserts that despite being given numerous chances, the Appellant is yet to file a proper Record of Appeal. He points out that on 24th June 2024, the Appellant served yet another incomplete Record of Appeal, omitting crucial documents relied upon by the trial court.
9. Counsel accuses the Appellant of attempting to steal a match from the Respondent by omitting critical documents that informed the reasoning of the trial court. He singles out an attendance register/muster roll produced before the trial court to show the number of days the Appellant had worked, which is said to have been omitted from the Record of Appeal.
10. The Appellants’ response is contained in a replying affidavit sworn by the 1st Appellant, Aaron Mugesan Kaduyu on 17th December 2024.
11. Kaduyu depones that a consolidated Record of Appeal consisting of 207 pages was filed on 6th July 2023. Thereafter, the Appellants filed their submissions on 17th February 2024.
12. Kaduyu terms the Respondent’s objection as a delaying tactic and insists that the Record of Appeal is complete.
13. I have carefully considered the Respondent’s objection and the Appellants’ response. While the Record of Appeal filed by the Appellants may not be in compliance with the required format, I am satisfied that striking out the appeal on this ground would be a travesty of justice.
14. In the circumstances, I direct the Appellants to prepare a fresh comprehensive Record of Appeal which they will forward to the Respondent’s Counsel for concurrence on completeness before filing in court within the next twenty-one (21) days from the date of this ruling.
15. Failure to comply with these directions will lead to an automatic striking out of the appeal, without any further orders from the Court.
16. Each party will bear their own costs.
17. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF JANUARY 2025LINNET NDOLOJUDGEAppearance:Mr. Ngigi for the AppellantMr. Kiwinga for the Respondent