https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1406

Newnham Services International Limited v Pamba & another (Suing as Legal Representatives of Patrick Pamba Dennis (Deceased)) (Appeal E354 of 2024) [2026] KEELRC 1406 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1406 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E354 of 2024 JW Keli, J May 15, 2026 Between Newnham Services International Limited Appellant and Robert Ojimbo Pamba & Mildred Neriman Ojiambo (Suing as Legal Representatives of Patrick Pamba Dennis (Deceased)) Respondent Ruling 1.The Respondent to the appeal filed application by way of Notice of Motion dated 16th December, 2025, seeking the memorandum of appeal filed on 11th December, 2024, to be struck off for being filed out of time and further for the release of the security deposited in court. 2.In response, the Appellant did not deny having filed an appeal out of time vide response dated 20th February 2026, in objection to the application. The Appellant stated that he filed a memorandum of appeal on 11th December 2024, judgment was delivered on 31st October 2024 and certified copies were released on 24th November 2024. 3.The appellant contended that pursuant to the order of stay of execution, he had complied and filed a record of appeal. He stated that a memorandum of appeal can be filed out of time as the delay was justified. On issue of order 9 Rule 9, the appellant stated that the instant appeal instruction was not under the said Rule. It is a different case. Decision 4.The application was canvassed by way of written submissions. 5.The time of filing an appeal from a magistrate's decision to this court is 30 days as provided in Rule 12 of the Employment and Labour Relations Court(procedural) Rules of 2024. 6.The court has discretion to extend the time for filing an appeal under Rule 18 of the Court procedural Rules. There is no application for extension of time before court. It has been established that the appeal was filed out of time. The appeal is time barred and cannot stand consistent with the Supreme court decision in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) –‘The applicant, by filing an appeal out of time before seeking extension of time, and subsequently asking the court to extend time and recognize such ‘an appeal’, was tantamount to moving the court to remedy an illegality which the court could not do and such a document was unknown in law. Where one intended to file an appeal out of time and sought an extension of time, the much he could do was to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it.’ The appellant has admitted he filed the appeal out of time. The court applied the foregoing decision of the Supreme Court to hold there was no valid appeal. The application to strike out the appeal is merited and is allowed. 7.On whether to release the decretal sums, the same was deposited as security pending appeal. I find it would be drastic to expose the Respondent who is obviously desirous of appeal. The court grants the Appellant 30 days to seek an extension of time for filing the appeal under Rule 18, ELRC Rules 2024, failing which the security will be released. The order is in the interest of justice. 8.The Respondent /applicant is awarded costs of the application. 9.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026.JEMIMAH KELIJUDGE.In the Presence of:C/A OtienoAppellant - WachakanaApplicant - Kimani h/b Nyabena