https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1303

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** *Before Hon. Lady Justice Monica Mbarũ)* **APPEAL NO. E062 OF 2024** **MIDDLE MANAGEMENT SERVICES APPELLANT** *VERSUS* **ELVINCE OCHIENG RESPONDENT** **RULING** The ruling herein relates to an application dated 24 October 2025 filed by the respondent, Elvince Ochieng, on the provisions of Order 17 rule 2, Order 51 rule 1, section 34 of the Civil Procedure Act and seeking orders: 1. The appeal be dismissed for want of prosecution. 2. The costs of the suit and the application be awarded to the respondent. The application is supported by the affidavit of Ian Ndaiga, Advocate for the respondent, on the grounds that the appellant filed this appeal upon the judgment of the trial court delivered on 16 September 2022, with the award of Ksh. 632,724.85. No appeal was filed within the prescribed period. The appellant served the Memorandum of Appeal dated 1 March 2024 more than a year later. The appellant also filed an application dated 1 March 2024 seeking to file the appeal out of time. Since the appellant has not taken any step to have the appeal heard. It is clear that the appellant has lost interest in the appeal, and the failure to set it down for a hearing indicates such a lack of interest. The failure to prosecute the appeal is prejudicial to the respondent, who should be allowed to enjoy the fruits of his judgment. The application should be allowed and the appeal dismissed with costs. In reply, the appellant filed the Replying Affidavit of Thomas Kuria, advocate. He avers that the Memorandum of Appeal followed the judgment in Nairobi Cause No. 1855 of 2019. Because of dissatisfaction with the judgment, the appeal was deemed necessary. Immediately upon filing the appeal, the appellant applied for certified written proceedings and judgment, which have not been supplied for the preparation of the Record of Appeal. The court registrar has not supplied the records necessary for the record. The failure to file the Record of Appeal was due to factors beyond the control of the appellant. The advocate on record then encountered inadvertent administrative difficulties in obtaining the pleadings and proceedings since the appellant was represented by the firm of ***Murimi & Co. Advocates***. It became difficult to obtain the records. Kiria advocate avers that the appeal raises triable issues of law and fact, and unless the appellant is heard on merit, great injustice and prejudice will be occasioned. The application is ready to be filed and served as the Record of Appeal within the timelines set by the court. The parties attended and made oral submissions in open court. **Determination** The respondent, as the applicant, has relied on Orders 17 and 51 of the Civil Procedure Rules. Appeals filed before the court are regulated under section 17 of the Employment and Labour Relations Court Act and the Employment and Labour Relations Court (Procedure) Rules. For an appeal arising from the judgment of the trial court, upon delivery, an appeal must be lodged within 30 days in accordance with Rule 12(2) ***(2) Where an appeal is from a magistrate’s court or where no period of appeal is specified in the written law referred to in sub -rule (0), the appeal shall be filed within thirty days from the date the decision is delivered.*** The appellant filed this appeal in March 2024. It relates to the trial court judgment delivered on 16 September 2022 in **Nairobi CMELRC No. 1855 of 2019**. From 16 September 2022, the appellant had 30 days to file the appeal to this court. This was done only in March 2024, well after the statutory threshold under section 17 of the ELRC Act and the Rules. The respondent submitted that the appellant filed an application to file the appeal out of time. This record is not available to this court. Even in a case where an application was filed, the fact of filing the appeal out of time is not addressed by the appellant in the Replying Affidavit of Kuria, Advocate. Where leave to file an appeal was indeed obtained, that right secured, under Rule 13 of the ELRC Court Rules, a Memorandum of Appeal should be filed and served within 21 days; ***13. A memorandum of appeal shall be served upon the respondent within twenty-one days from the date of filing.*** Further to the Memorandum of Appeal, under Rule 15(1) of the Court Rules, it should be accompanied by the Record of Appeal. The Record of Appeal consolidates all the pleadings before the trial court and the decree thereof: ***15.(1) A memorandum of appeal shall be accompanied by a record of appeal comprising a certified copy of pleadings, the proceedings, any documentary evidence relied on, and the judgment, ruling, decision, order, decree or award appealed against.*** Where the Record of Appeal is incomplete, or the appellant is unable to file and serve it with the Memorandum of Appeal, under the Court Rules, provision is made. This is to be found under Rule 15(2) of the Court Rules: ***(2) Where the record of appeal is not filed together with the memorandum of appeal, the appellant shall file the Record within sixty days from the date of delivery of the judgment, ruling, decision, or order, decree or award appealed against*** The Record of Appeal must be filed within 60 days from the date the judgment or ruling subject to the appeal was issued. The effective date for tabulation of time is the trial court judgment or ruling. In this case, pursuant to the trial court's judgment on 16 September 2022, the appellant had 60 days to file and serve the Record of Appeal. Where leave was obtained to file the appeal out of time, time started running from such date. In this regard, there is no compliance. The Memorandum of Appeal is filed devoid of the Record of Appeal. In instances where the appellant is unable to secure the Record of Appeal due to difficulties in obtaining all the relevant records from the trial court, that is to be cured under Rule 16 and 18 of the Court Rules: **16. The appellant may, with leave of the Court, file and serve a supplementary memorandum of appeal or a supplementary record of appeal.** And; ***18. The Court may, if circumstances justify, extend the time prescribed for the filing of an appeal or any document relating to an appeal.*** Thus, one has to seek leave to file a Supplementary Record of Appeal or seek an extension of time to file the Record of Appeal out of time. The Rules of the Court are thus facilitative to ensure the ends of justice are achieved. The Court Rules have provided context for a situation where the appellant is unable to obtain all the trial court records within 21 days or 60 days, and have made provision for the filing of supplementary records upon seeking leave, and further allow the request for more time to file the record out of time. Despite these provisions, the appellant sat back, leading to the instant application by the respondent. Thus, a proactive, diligent and an appellant keen to be heard on the appeal will engage the court within the allocated timelines. Sitting back with the view that one applied for typed proceedings and these have not been supplied, is being indolent. This does not aid justice. Sitting on an appeal while the respondent holds a valid judgment is to invite proceedings such as those filed by the respondent herein. The respondent's application thus seeks dismissal of the appeal for want of prosecution. Since March 2024, when the appeal was filed, the appellant has done nothing under Rules 12, 13, 15, 16 or 18 of the Court Rules to urge its case. The respondent cannot be punished under the indolence of the appellant. **The application dated 24 October 2025 is with merit. The appeal herein is dismissed for want of prosecution. Costs to the respondent.** **Delivered in open court at Nairobi, this 18th day of May 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistants: Catherine, Kemboi and Omar ……………………………………………… and …………………………………..…………..