https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2212

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E366 OF 2025** **SANA INDUSTRIES COMPANY LIMITED APPELLANT** ***VERSUS*** **DENNIS OONGO ANYIMU RESPONDENT** **RULING** The appellant filed an application dated 28 May 2026 under Rules 15, 16, 18 and 19 of the Employment and Labour Relations Court (Procedure) Rules, articles 50(1) and 159(2) (d) of the Constitution and seeking orders: 1. Spent. 2. The court be pleased to set aside and vacate the orders of 22 May 2026 dismissing the appeal and reinstate the appeal for hearing and determination of merit. 3. The court be pleased to enlarge time and grant the appellant leave to file and serve a complete Record of Appeal out of time. 4. In the alternative, ad pending the filing of the complete Record of Appeal, the court be pleased to call for and rely on the original lower court file and proceedings for purposes of determining the appeal. 5. Costs be in the cause. The application is supported by Denis Karanja, the human resource manager, and is filed on the grounds that the appeal was filed following the trial court's ruling on 15 October 2025. The appellant applied for certified copies of the proceedings and the ruling to prepare the Record of Appeal. These records have not been issued despite efforts to obtain them. The non-filing of a complete Record of Appeal has been necessitated by the lack of the typed proceedings leading to the dismissal of the appeal on 22 May 2026 under Rule 15 of the Court Rules. The failure to file the complete Record of Appeal was not deliberate and was occasioned by factors beyond the control of the appellant. The trial court has not issued the typed proceedings. In reply, the respondent filed his Reply and Affidavit, and avers that, following the ruling on 15 October 2025, the appellant filed this appeal but has been dilatory in filing the Record of Appeal. On 22 May 2026, the matter came up in court, and the appeal was time-barred, and the court dismissed it. The court had issued a notice to show cause why the appeal should not be dismissed under Rule 15 of the Court Rules. The respondent avers that the grant of the orders sought will be greatly prejudicial to him on the basis that the appellant has not taken any interest in prosecuting the appeal. The constituted inaction will lead to more costs and deny the respondent justice. The application herein is in abuse of the court and should be dismissed with costs. The appellant submitted that the appeal relates to a ruling delivered on 15 October 2025. The learned magistrate declined to allow the appellant to produce crucial documents which are necessary for the prosecution of the appellant’s case. When the matter of appeal came up for notice to show cause before the court, the appellant’s advocate was bereaved, and the respondent’s advocate was aware of the non-attendance in court. The failure to file the typed proceedings and Record of Appeal is due to the trial court not supplying the appellant with the typed proceedings. The court should take judicial notice that the lower court is understaffed and that there is a backlog in the typing of proceedings. The appellant was therefore not able to file the appeal within 60 days. Under Article 159 of the Constitution, in meeting the ends of justice, the court should allow the appeal by reinstating it for hearing on the merits. The respondent submitted that on 22 May 2026 the matter came for notice to show cause and the appellant was represented by counsel in court. No response was filed to the notice to show cause. Under Rule 15(2) of the Court Rules, the appeal had abated, and the dismissal was properly applied. The appellant has not applied for review but to set aside the order of dismissal without justification. The application of Article 159 of the Constitution cannot shield the appellant from failing to properly undertake their work under the Court Rules. **Determination** The appellant seeks that the orders issued on 22 May 2026 be set aside and vacated, and that the appeal be reinstated. The appellant is also seeking an enlargement of time and leave to file the Complete Record of Appeal out of time. The appellant is further seeking that the court do call for the trial court file and rely on its proceedings in determining the appeal. The court issued a notice to show cause on 8 May 2026 as to why the appeal should not be dismissed for lack of a Record of Appeal. The appellant was in court represented by counsel. The parties were to attend on 22 May 2026 for this purpose. On the due date, the appellant filed letters to the court explaining why the Record of Appeal had not been filed and, in particular, why the typed proceedings had not been secured. There was no response to the notice to show cause why the Record of Appeal had not been filed. The appeal relates to a ruling of the trial court delivered on 15 October 2025. This much is admitted by the parties, particularly the appellant. Under the Employment and Labour Relations Court (Procedure) Rules (the Court Rules), upon the subject ruling and subject of the appeal, a party is allowed 30 days to file the appeal, which was done on 24 October 2025. In filing the appeal, the party may file the Record of Appeal, a compilation of all the records before the trial court. Under the Court Rules, it is appreciated that the Record of Appeal may not be ready at the time of filing the appeal. Indeed, Rule 15(2) of the Court Rules allows the filing of the Record of Appeal within 60 days: ***(2) Where the record of appeal is not filed together with the memorandum of appeal, the appellant shall file the Record within sixty days from the date of delivery of the judgment, ruling, decision, order, decree or award appealed against*** Further, where the full Record of Appeal is not filed, under the Court Rules, an appellant is allowed to file a Supplementary Record of Appeal. These steps under the Court Rules are part of the due process and ensure access to justice. The right of appeal is secured if the appellant is unable to file the Record of Appeal in time, or if the need to file a Supplementary Record of Appeal is allowed. Hence, before invoking Rule 18 on time extension to file the Rule 18 of the Court Rules is herein done by the appellant, a demonstration of efforts in adhering to the rules is imperative. Rule 18 requires: ***18. The Court may, if circumstances justify, extend the time prescribed for the filing of an appeal or any document relating to an appeal.*** Despite the appellant thus invoking the provisions of Rule 15, 16, 18 and 19 of the Court Rules, the basics of filing any form of a Record of Appeal have not been done. The court is still left without such records. To reinstate the appeal will not achieve anything. Setting aside the orders issued on 22 May 2026 will be futile. Extension of time to allow the appeal to be heard on the merits will be based on emptiness. The court cannot recall the trial court file to fill gaps that the appellant should ordinarily hold. The subject ruling subject of the appeal. The application leading to the ruling. These are records within the appellant's possession and knowledge. Both times when the matter came up in court on 8 and 22 May 2026, the appellant was well represented. A case that the right thing was not done because counsel was bereaved is immaterial. Thus, invoking Article 50 and 159 of the Constitution, where the basics of the Court Rules have not been applied, will not elicit the grant of the orders sought. The appellant was given a chance to show cause and failed to address accordingly. The Court Rules have not been applied until after the appeal is dismissed. The appellant cannot justify a claim that the matter proceeded unheard or that the court applied technicalities instead of substantive justice. **The application dated 28 May 2026 is without merit and is hereby dismissed with costs to the respondent.** **Delivered in open court this 30th day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**