[2021] KEELRC 981 (KLR)
The court found that although the Appellant had written to request certified proceedings and judgment, there was no evidence that a copy of such request was served on the Respondent as required by law. The absence of this service constituted a material departure from the legal requirements for prosecuting an appeal....
Source-derived case information.
- Citation
- [2021] KEELRC 981 (KLR)
- Parties
- Appellant: Ruiru Feeds Limited; Respondent: Samuel Njuguna Mbugua
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Appeal 14 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Motion to Dismiss Appeal for Want of Prosecution
- Outcome
- appeal struck out with costs to the respondent
- Judges
- AN Makau
- Legal Topics
- Appeal Dismissal, Delay in Prosecution, Record of Appeal, Terminal Dues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruiru Feeds Limited
Appellant
Samuel Njuguna Mbugua
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for inordinate delay in filing the record of appeal.
- 2 Whether the Appellant demonstrated sufficient cause for the delay in prosecuting the appeal.
- 3 Whether the Appellant complied with the legal requirements for requesting proceedings and serving the Respondent.
Ratio Decidendi
The court found that although the Appellant had written to request certified proceedings and judgment, there was no evidence that a copy of such request was served on the Respondent as required by law. The absence of this service constituted a material departure from the legal requirements for prosecuting an appeal. Consequently, the Appellant could not benefit from the exclusion of time for delay in obtaining proceedings, and the appeal was rendered moot due to inordinate delay and non-compliance with procedural rules. The appeal was struck out with costs to the Respondent.
Court Disposition
appeal struck out with costs to the respondent
Orders
- The appeal is struck out.
- Costs awarded to the Respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
APPEAL NO. 14 OF 2020
(FORMERLY HC CIVIL APPEAL NO. 154 OF 2019)
RUIRU FEEDS LIMITED.................................................................APPELLANT
VERSUS
SAMUEL NJUGUNA MBUGUA..................................................RESPONDENT
RULING
1. The notice of motion dated 14th April 2021 is due for determination. It seeks the dismissal of the instant appeal as there had been inordinate delay in filing the record of appeal which amounts to negligence as the Appellant has not taken any steps in prosecuting this appeal since 23rd October 2019 when the memorandum of appeal was filed.
2. The motion was supported by the affidavit of Samuel Njuguna Mbugua the Respondent herein. He deposed that the Appellant had been ordered to pay him terminal dues amounting to Kshs. 324,170. 50 plus interest and that the Appellant preferred an appeal on 23rd October 2019 but has since then not filed the record of appeal. He asserts this amounts to negligence and a wastage of the court precious time. He deponed that the Appellant had the intention of continuing to deny him the fruits of his judgment.
3. The Appellant filed a replying affidavit sworn by Mr. Harish Patel who deponed that the averments by the Respondent were denied as the Appellant has been keen to prosecute the appeal and has already taken steps towards prosecuting the appeal. He deponed that the lower court had not supplied the physical copies of certified proceedings and judgment to enable the Appellant file the record of appeal. He deponed that the Appellant has been making efforts to have the same availed and cannot be blamed for the delay to have the proceedings ready.
4. The certified copy of typed proceedings and judgment are yet to be availed to the Appellant by the Chief Magistrate’s Court at Ruiru. The record is what has delayed the filing the record of appeal. There are 2 letters attached bespeaking the typed proceedings and copy of judgment. In computing time for the preparation and presentation of the record of appeal, there is provision for exclusion of the period of aforesaid delay in the preparation and supply of the proceedings by the registry. There must however be proof that an appellant is able to demonstrate that firstly, a request for proceedings was made in writing to the deputy registrar, and secondly, that a copy of such request was been served on the respondent. In the 2 letters displayed as proof, none is copied to the Respondent herein. In the premises, there would be no way to salvage the appeal preferred as there has been material departure from the law in presenting this appeal for determination rendering the appeal moot. Appeal is struck out with costs to the Respondent.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF SEPTEMBER, 2021
NZIOKI WA MAKAU
JUDGE