[2024] KEELRC 638 (KLR)
The court determined that it could not render a proper judgment in the appeal due to the absence of the original lower court file and inconsistencies in the memorandum of appeal regarding the impugned ruling and case reference. However, since these anomalies were not attributable to the appellant personally but...
Source-derived case information.
- Citation
- [2024] KEELRC 638 (KLR)
- Parties
- Appellant: Elijah Kipkemoi Rotich; Respondent: Mogogosiek Tea Factory
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Appeal E004 of 2021
- Procedural Posture
- Civil Appeal / Directions After Hearing, Pending Judgment
- Outcome
- Directions issued to regularize the appeal; no final determination on merits.
- Judges
- DN Nderitu
- Legal Topics
- Appeal Procedure, Record of Appeal, Lower Court File, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Kipkemoi Rotich
Appellant
Mogogosiek Tea Factory
Respondent
Procedural Posture
Civil Appeal / Directions After Hearing, Pending Judgment
Legal Issues
- 1 Whether the court can render a proper judgment in the absence of the original lower court trial file.
- 2 Whether the anomalies in the memorandum of appeal regarding the impugned ruling and case reference render the appeal incompetent.
- 3 Whether the appeal should be struck out or salvaged in the interest of justice.
Ratio Decidendi
The court determined that it could not render a proper judgment in the appeal due to the absence of the original lower court file and inconsistencies in the memorandum of appeal regarding the impugned ruling and case reference. However, since these anomalies were not attributable to the appellant personally but rather to counsel or the court registry, the court exercised its discretion in the interest of justice to issue directions aimed at salvaging the appeal rather than striking it out as incompetent. The court directed the registry to obtain the lower court file and granted the appellant leave to amend the memorandum of appeal and file a supplementary record of appeal.
Court Disposition
Directions issued to regularize the appeal; no final determination on merits.
Orders
- The Deputy Registrar/Registry shall within 7 days obtain and attach the trial lower court file.
- The appellant is granted 30 days to file an amended memorandum of appeal and a supplementary record of appeal.
Full Case Text
Judgment text and source record
19 paragraphs
Rotich v Mogogosiek Tea Factory (Appeal E004 of 2021) [2024] KEELRC 638 (KLR) (20 March 2024) (Directions)
Neutral citation: [2024] KEELRC 638 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kericho
Appeal E004 of 2021
DN Nderitu, J
March 20, 2024
Between
Elijah Kipkemoi Rotich
Appellant
and
Mogogosiek Tea Factory
Respondent
Directions
1. After the court retreated to write judgment in this appeal, I noted the following –i.The original lower court trial file was not availed and efforts to have the same traced and delivered have yielded naught.ii.The memorandum of appeal in the record of appeal introduces the appeal as against a ruling by Hon. E.K. Makori(CM) dated June 15, 2022, and in the same breath challenges a ruling by Hon. S.M. Mokua dated June 15, 2022. iii.The prayer in the memorandum of claim is that the ruling of Hon. E.K. Makori (CM) delivered on 15th June, 2021 be set aside.iv.Variously, the memorandum of appeal makes reference to the original trial lower court file as Kericho CMCC ELRC No. 8 of 2020 and also No. 22 of 2020.
2. In the foregoing circumstances, it is not legally possible or logical for this court to render a proper judgment in the matter.
3. Were it not that the anomalies aforestated are not attributable to the appellant personally, the court should have proceeded to strike out the appeal for being incompetent.
4. However, in the interest of justice, noting that the mistakes and or anomalies cited above are attributable either to counsel or the court registry, the court shall issue the following directions with a view of salvaging the appeal –i.The Deputy Registrar/Registry shall within 7 days hereof obtain and attach the trial lower court file herewith.ii.The appellant is granted 30 days to file an amended memorandum of appeal and a supplementary record of appeal.iii.Mention on 11th June, 2024 for further orders and or directions.
DELIVERED VIRTUALLY, DATED, AND SIGNED AT NAKURU THIS 20TH DAY OF MARCH, 2024. ..................................DAVID NDERITUJUDGE