https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2013

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E429 OF 2025** **(as consolidated with E429 OF 2025)** *(Before D. K. N. Marete)* **RASHID HAJJI MUSA.....................................................................................APPELLANT** **VERSUS** **ENOCK ALUMASI .................................................................................1ST RESPONDENT** **IMPACT CHEFS & HOSPITALITY ACADEMY LIMITED .....… 2ND RESPONDENT** **ENOMA GLOBAL SOLUTIONS LIMITED ………………..………3RD RESPONDENT** **RULING** This is an application by way of a preliminary objection dated 3rd March, 2026. It comes out thus; 1. *That the Appeal is incompetent and fatally defective as it offends the mandatory provisions of Section 79G of the Civil Procedure Act and Order 42(1) (2) and (13) of the Civil Procedure Rules 2010.* 2. *That the Honourable Court lacks jurisdiction to hear an incompetent and fatally defective.* The Respondent in reliance to the celebrated authority of **Mukhisa Biscuits Manufacturing Company Limited vs West End Distributors (1969) EA 696** submits that the Appellant filed their appeal on 20th February 2026 on a decision made on 10th December, 2025. This clearly comes out in breach of Section 79G of the Civil Procedure Act that restricts appeals to a mere thirty days of the judgment order or ruling appealed against. Again, the Respondent rubbishes the appeal for failure to comply with Order 42, Rule 2 on the filing of the decree or order appealed besides Order 42 Rule 13, part (f) that provides for the procedural requisites of an appeal. The Respondent on this seeks to rely on the authorities of **Paul Wepukuhulu & 2 others vs Charles Nakitare (1997)** and **Bwana Mohamed Bwana vs Silvano Buko Bonava & 2 others (2015) eKLR** where the court upheld that a certified decree is a primary document and its absence renders the appeal material for striking out by court and also an affirmation by the Supreme Court that an incomplete record, one lacking a decree makes an appeal incomplete and divests the court of jurisdiction. Equally, an appeal comes in against a decree and not a judgment. In the absence of a certified copy of the decree, the appeal becomes incomplete, defective, incompetent and fatally defective thereby warranting an order for striking out. The Appellant at paragraph 24 of their written submissions dated 21st April, 2026 submits that the subject matter of this appeal is the ruling of the lower court of 19th January 2026 against their application dated 11th and 18th December, 2025 and no more. It is not against the judgment delivered on 16th June, 2025 as alleged and submitted by the Respondent. Here, this was allowed with order that the Appellant files their appeal within thirty days of the ruling. The Record of Appeal was filed on 20th February, 2026 was within the direction and order of the trial court and therefore this objection is baseless. The Appellant further submits that the Civil Procedure Act and Rules are inapplicable to Employment and Labour Relations matters save for only three instances comprised as follows; 1. The institution of Judicial Review Proceedings as per Rule 10(2) of the Employment and Labour Relations Court (Procedure) Rules. 2. The form and content of Affidavits (Rule 65(8) of the Rules.) 3. The execution or stay of Decrees and Orders of the court as per Rule 73(2) of the Rules. Besides, Rule 15(2) of the Employment and Labour Relations (Procedure) Rules, 2024 provides that where the Record of Appeal is not filled with the Memorandum of Appeal, the Appellant is awarded sixty (60) days from the date of the delivery of the impugned order within which to file his appeal. All these comes in to delimit the viability of the preliminary objection as set out. In finality, the Appellant reiterates that this appeal is against the ruling of the trial court delivered on 10th December, 2025 and not against the judgment of 16th June, 2025. Besides there is no requirement in law that a decree must emanate from a ruling but a judgment. None is available in our circumstances. Moreover, Rule 15 of the Employment and Labour Relations Court (Procedure) Rules only requisitions a ruling as an alternative to any other requisitions. This is besides Rule 19 of the Employment and Labour Relations Court (Procedure) Rules, 2024 which provides that if the Respondent is of the view that the Record of Appeal is incomplete then the Respondent is at liberty to apply to the court and seek leave to file a supplementary Record of Appeal. The onus is therefore placed upon the Respondent to provide the documents that they believe would be essential in ensuring that all the material necessary in the prosecution of the Appeal are presented before the court. The preliminary objection is on this premises not sustainable. This is because the Appellant’s case in opposition to it overwhelms the case for its adoption. There is ample demonstration that the preliminary objection lacks basis or merit in law. This is *inter alia*, because this appeal comes in against a ruling delivered on 10th December, 2025 and squarely falls within the stipulated thirty (30) days period of appeal. I am therefore inclined to disallow the preliminary objection with costs to the Appellant. Delivered, dated and signed this **15th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** **Appearances:** 1. Miss Wangui holding brief for Chisengo instructed by Chisengo & Company Advocates for the Objector. 2. Mr. Ng’ang’a Kamau instructed by G. N. Kamau & Associates Advocates for the Appellant/Respondent