[2024] KEELRC 145 (KLR)
The court found that the Appellant had taken all reasonable steps to obtain the typed proceedings from the lower court, including making payments and consistent follow-up correspondence. The delay in prosecuting the appeal was not due to the Appellant's indolence but was occasioned by the lower court's failure to...
Source-derived case information.
- Citation
- [2024] KEELRC 145 (KLR)
- Parties
- Appellant: James Muthama Munyili; Respondent: CMC Motors Group Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E086 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Notice to Show Cause dismissed; Appellant granted time to file Record of Appeal.
- Judges
- L Ndolo
- Legal Topics
- Appeal Procedure, Record of Appeal, Delay in Prosecution, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Muthama Munyili
Appellant
CMC Motors Group Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay in filing the Record of Appeal.
- 2 Whether the delay in prosecuting the appeal is attributable to the Appellant.
Ratio Decidendi
The court found that the Appellant had taken all reasonable steps to obtain the typed proceedings from the lower court, including making payments and consistent follow-up correspondence. The delay in prosecuting the appeal was not due to the Appellant's indolence but was occasioned by the lower court's failure to supply the necessary proceedings. Since a Record of Appeal cannot be filed without the lower court proceedings, there was no further step the Appellant could have taken. The Notice to Show Cause was therefore issued in error, and the appeal should not be dismissed for want of prosecution. The Appellant is granted liberty to file the Record of Appeal within seven days of receiving...
Court Disposition
Notice to Show Cause dismissed; Appellant granted time to file Record of Appeal.
Orders
- The Notice to Show Cause is dismissed.
- The Appellant is at liberty to file the Record of Appeal within seven days after receipt of the typed proceedings from the lower court.
Full Case Text
Judgment text and source record
28 paragraphs
Munyili v CMC Motors Group Limited (Civil Appeal E086 of 2022) [2024] KEELRC 145 (KLR) (8 February 2024) (Ruling)
Neutral citation: [2024] KEELRC 145 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Civil Appeal E086 of 2022
L Ndolo, J
February 8, 2024
Between
James Muthama Munyili
Appellant
and
CMC Motors Group Limited
Respondent
Ruling
1. On 11th September 2023, the Appellant was served with a Notice to Show Cause why this appeal should not be dismissed for want of prosecution.
2. The Appellant responded to the Notice to Show Cause by an affidavit sworn by his Counsel, Kevin Onyango Omondi, on 26th September 2023.
3. Counsel depones that he has been in communication with the lower court Registry and has paid for typed proceedings twice. The proceedings have not been supplied hence the delay in filing the Record of Appeal.
4. The Respondent filed its own affidavit sworn by its Counsel, George Ogembo, on 1st December 2023.
5. Counsel depones that the Respondent was served with the Appellant’s Memorandum of Appeal on 6th July 2022.
6. He points out that by virtue of order 42 rule 13(1) of the Civil Procedure Rules, the Appellant was required to set down the appeal for directions within 21 days after service of the Memorandum of Appeal. He adds that there is no provision in law requiring the Appellant to obtain typed proceedings before setting down the appeal for directions.
7. According to Counsel the Appellant is an indolent party who was prompted to action by the Notice to Show Cause.
8. From the record, the Appellant filed his Memorandum of Appeal on 4th July 2022. There is evidence that his Counsel on record not only paid for typed proceedings at the lower court but has also consistently followed up with that court, by way of written correspondence, for the proceedings to be availed. Such a party cannot be said to have been indolent.
9. Once an Appellant has filed a Memorandum of Appeal, the next step is to file a Record of Appeal upon which directions for filing of written submissions will be issued. A Record of Appeal must include the proceedings before the lower court. There is therefore no further step the Appellant could have taken without the proceedings at the lower court.
10. The delay in prosecuting this appeal cannot be assigned to the Appellant and the Notice to Show Cause was issued in error.
11. The Appellant is at liberty to file his Record of Appeal within seven (7) days after receipt of the typed proceedings from the lower Court.
12. The costs of these proceedings will be costs in the appeal.
13. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF FEBRUARY 2024LINNET NDOLOJUDGEAppearance:-Mr. Omondi for the AppellantMr. Ogembo for the Respondent