https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1594

Press Master Ltd v Elego & 103 others (Civil Application E571 of 2022) [2026] KECA 1594 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1594 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E571 of 2022 JW Lessit, JA July 31, 2026 Between Press Master Limited Applicant and John Elego & 103 others Respondent (An application for leave to file and serve a composite memorandum of appeal against the entire Judgment of the Employment and Labour Court (Nduma Nderi, J.) delivered on 10th August, 2018 in ELRC Case No. 468 of 2013.) Ruling 1.This application which is dated 16th April, 2026 has been brought by the applicant, Press Master Limited, pursuant to rules 4, 47 and 86 of the Court of Appeal Rules, 2022 (the Rules). It seeks:i.Leave to file and serve a composite memorandum of appeal and further submissions in the matter;ii.That the annexed composite memorandum of appeal be deemed as duly filed upon payment of the requisite court fees;iii.That the costs of this application be in the appeal. 2.The grounds in support of the application are on the face of the application and in the affidavit in support thereof sworn by Harjinder Panesar, Director of the applicant’s company, sworn on even date. 3.The applicant, in the affidavit in support of the application deposes that it has filed a record of appeal comprising a memorandum of appeal and submissions, challenging the judgment of Nduma Nderi, J. (as he then was) delivered on 10th August, 2018 in ELRC No. 468 of 2013 and that the appeal is ready for hearing. He avers that the new advocate instructed to take over the appeal, upon reviewing the post- judgment proceedings comprising of applications, computation rulings that arose during execution, revealed that it was necessary to put in additional and refined grounds of appeal and a consolidation of the grounds of appeal from the different post judgment rulings into a composite memorandum of appeal. 4.The applicant avers that the respondents' pre-judgment computation of Kshs.64 million was adopted by Onyango, J. on 28th January, 2019 and that they were subsequently awarded a further computation of Kshs.16,424,119.28. It contends that the proposed composite memorandum of appeal is intended to bring clarity, coherence and completeness to the issues in dispute. The applicant further contends that the composite memorandum of appeal does not introduce a new cause of action but merely refines and organizes the existing grounds of appeal and raises weighty issues of law that should be consolidated and argued before the same bench to save judicial time and facilitate the expeditious determination of the appeal. The applicant therefore prays that the application be allowed. 5.This application is unopposed as the respondents have neither filed a replying affidavit nor written submissions, despite service with a hearing notice via email on 26th May, 2026 at 10:11 a.m., notifying the parties that the application will be heard by way of written submissions on 2nd June, 2026 and despite notice to the parties advocates to comply with directions issued in regard to filing and serving of their respective written submissions. 6.In its written submissions dated 28th May, 2026 filed in support of the application, the applicant reiterates the averments on the face of the motion, and in the supporting affidavit. It submits that it does not seek to institute a fresh appeal, but only seeks leave to consolidate and refine the grounds arising from the same dispute through a composite memorandum of appeal. It contends that the post-judgment proceedings, including subsequent applications, computation rulings and related determinations, are intrinsically connected to and flow from the original judgment and should therefore be consolidated to enable comprehensive adjudication of all issues instead of compelling parties to pursue fragmented appellate processes over matters arising from the same cause. 7.The applicant submits that the respondents will suffer no prejudice if the application is allowed, whereas the refusal would deny it the opportunity to fully ventilate all grievances arising from the impugned judgment and post-judgment proceedings. Relying on Article 159 (2)(d) of the Constitution, the applicant urges the Court to allow the application in the interest of substantive justice, avoid multiplicity of proceedings, and conclusively determine all matters arising from the dispute. 8.I have carefully considered this application, the grounds on the face of the Motion and in the supporting affidavit, applicant’s written submissions and the law. This application presents difficulties for want of form and for invoking the wrong rules in support thereof. I also have an issue with the proposed title of the memorandum. The applicant refers to it as ‘composite memorandum of appeal’. I doubt such a document is mentioned under the Rules. 9.The applicant has anchored its application under the wrong provision of the law, and in particular, rule 86 of the Rules of this Court. Rule 86 provides for application to strike out notice of appeal or record. If that was the only mistake in this application, I could have exercised my discretion to invoke the provisions of Article 159 (2)(d) of the Constitution which enjoins courts to administer justice without undue regards to procedural technicalities. See Odinga & 5 Others vs. Independent Electoral and Boundaries Commission & 3 Others [2013] KESC 6 (KLR). 10.Perhaps the most problematic part of the application is this. The applicant makes it clear that it had filed its memorandum of appeal and the submissions, and that the appeal was ready for hearing. Then it explains that after instructing new counsel to represent it in the appeal, and after the said counsel reviewed the record, amendment of the memorandum of appeal and the submissions became necessary. Part of the reason given for that need to amend are post judgment applications and rulings which changed the nature of awards given by the trial court by an award of an additional sum of over Kshs.16 million. It then annexed a memorandum of appeal. 11.I can safely assume that the applicant had filed a notice to appeal the judgment of the trial court before filing and serving the memorandum of appeal. That being the case, what the applicant should have annexed in its application should have been the draft amended memorandum of appeal. That it did not do. If what it filed titled composite amended memorandum of appeal was the proposed draft amended memorandum, then it did not comply with the Rules. In particular, rule 16(2) that gives the form of amendment, specifying thus:“ 16(2)where a person lodges an amended version of a document, that person shall show clearly-a.Any words or figures deleted from the original, by including the deleted words or figures and striking them through with red ink, so that what was written remains legible; and,b.Any words or figures added to the original, by writing them in red ink or underlining them in red ink.” 12.The applicant did not attach the amended memorandum of appeal in the prescribed format in order to assist the Court see what is proposed to be amended and what is being deleted. Amendment includes any words that were not in the original draft, so that even if nothing is intended to be deleted, what is added is shown clearly in red ink. 13.Looking at the annexed memorandum, I am unable to tell what was in the original memorandum and what is new. That means that the annexed memorandum fails the format test set under rule 16 (2) of the Rules. 14.The other difficulty in this application is the lack of information whether the applicant filed notices of appeal for each of the post judgment rulings and orders it intends to appeal. It was necessary to annex them to the application to remove doubt that such notices were filed and served. Rule 77 of this Court Rules provides as follows;“(1)A personal who desires to appeal to the Court shall give notice in writing, which notice shall be lodged in two copies, with the registrar of the superior court.” 15.From the wordings of these provisions, it is implied that an appeal lies against a particular decree, order or decision of the court. When a court renders separate and distinct decisions at different times, each decision ordinarily gives rise to an appeal thus requiring a separate notice of appeal. Each notice should be to a specific decision, and must comply with the timelines of filing and service under the rules. 16.In the present application, the applicant filed an appeal against the judgment of Nduma Nderi, J. dated 10th August, 2018. That notice cannot be relied on in respect of the later rulings by Onyango, J. dated 20th December, 2019 and 25th September, 2025. 17.Rule 88 of the Rules makes this clear. It prescribes as follows:1.A memorandum of appeal shall concisely set forth under distinct heads, without argument or narrative, the ground of objection to the decision appealed against, specifically-a.the points which are alleged to have been wrongly decided; andb.the nature of the order which it is proposed to ask the Court to make. 18.For the reasons given in this ruling, I find the application, inter alia, wanting of form, and accordingly, strike it out with no orders to costs. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026J. LESIIT………………… JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR