[2023] KEELRC 1900 (KLR)
The court found that the Memorandum of Appeal was filed within the statutory 30-day period following the lower court's ruling, as evidenced by the record. The court also determined that, despite the existence of a sub registry in Machakos, there is no Employment and Labour Relations Court at Machakos, and therefore,...
Source-derived case information.
- Citation
- [2023] KEELRC 1900 (KLR)
- Parties
- Appellant: Michael Nguta Mbithi; Respondent: The Chairman, Board of Management Boys High School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E024 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- L Ndolo
- Legal Topics
- Appeal Timelines, Jurisdiction of Court, Filing Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Nguta Mbithi
Appellant
The Chairman, Board of Management Boys High School
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the appeal was filed out of time without leave of the court.
- 2 Whether the appeal was filed in the correct court.
Ratio Decidendi
The court found that the Memorandum of Appeal was filed within the statutory 30-day period following the lower court's ruling, as evidenced by the record. The court also determined that, despite the existence of a sub registry in Machakos, there is no Employment and Labour Relations Court at Machakos, and therefore, the appellant was correct to file the appeal in Nairobi. Both grounds of the respondent's preliminary objection were found to be without merit, leading to the objection being overruled with costs awarded to the appellant.
Court Disposition
preliminary objection overruled
Orders
- The respondent's preliminary objection is overruled.
- Costs awarded to the appellant.
Full Case Text
Judgment text and source record
25 paragraphs
Mbithi v Chairman, Board of Management Boys High School (Civil Appeal E024 of 2022) [2023] KEELRC 1900 (KLR) (27 July 2023) (Ruling)
Neutral citation: [2023] KEELRC 1900 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Civil Appeal E024 of 2022
L Ndolo, J
July 27, 2023
Between
Michael Nguta Mbithi
Appellant
and
The Chairman, Board of Management Boys High School
Respondent
Ruling
1. This ruling flows from a Preliminary Objection raised by the Respondent by way of notice dated 18th March 2022.
2. The objection is premised on the following grounds:a.The appeal is incompetent as it has been filed out of the prescribed time for filing an appeal and no leave was sought and/or granted to file the appeal out of time;b.There is a competent Employment and Labour Relations Court at Machakos which is suitable to handle and determine the matter conclusively.
3. In opposition to the Preliminary Objection, the Appellant filed a replying affidavit sworn by his Counsel, Alfred Nyabena on 16th May 2023.
4. Counsel states that the appeal arises from the ruling and order of Hon Martha Opanga, SRM delivered on 25th January 2022 in Kangundo CMELRC No E005 of 2021.
5. He depones that the Memorandum of Appeal was filed on 24th February 2022, which was well within the 30 days’ timeline for lodging an appeal to this Court.
6. The Respondent’s Objection is based on two grounds’; first, that the appeal was filed out of time without leave of the Court and second, that the appeal was filed in the wrong court.
7. Regarding the first ground, there is evidence on record that the Memorandum of Appeal was filed on 24th February 2022 within the 30-day window allowed in law.
8. On the second ground, the correct position is that although there is a sub registry in Machakos, there is in fact no Employment and Labour Relations Court at Machakos. It was therefore in order for the Appellant to file his appeal in this Court.
9. In light of the foregoing findings, both grounds of the Respondent’s Preliminary Objection collapse and the Objection is therefore overruled with costs to the Appellant.
10. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF JULY 2023LINNET NDOLOJUDGEAppearance:Mr. Nyabena for the AppellantMr. Watuka for the Respondent