https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2405

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E283 OF 2024** **JASO SHEPPARD 1ST APPELLANT** **MISSION 180 MINISTRIES 2ND APPELLANT** *VERSUS* **BEATRICE MUKOLA RESPONDENT** **RULING** The appellants filed an application dated 23 June 2026 under the provisions of Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, seeking orders that the court be pleased to review, vary, and set aside the orders dismissing the appeal herein. The appeal be reinstated for hearing and determination on merit, and costs be provided for. The application is supported by Richard M. Mutiso, who filed his Supporting Affidavit and averred that he is the appellant's advocate. The matter came up for a Notice to Show Cause as to why the appeal should not be dismissed for want of prosecution. Counsel logged into the virtual court session, ready to address the court, but experienced technical challenges that prevented him from doing so. While counsel was logged into the court session, the court dismissed the appeal for want of prosecution. When counsel addressed the court, directions were issued stating that the appeal had already been dismissed. The respondent had already left the court session. The dismissal of the appeal arose from inadvertence and technical difficulties beyond counsel's control. The appellant had already complied with the court directions by filing and serving the Record of Appeal together with written submissions. There is an arguable appeal with high chances of success, and unless the orders sought are allowed, the appellants will suffer irreparable loss and damage. In the interests of justice, the appeal be reinstated for a hearing on the merits. There is no reply by the respondent save to submit that events have already overtaken the appeal. The decretal sum deposited with the court has since been released and remitted to the respondent; thus, the appeal is spent. **Determination** The appellants have relied on Rule 33 of the Employment and Labour Relations Court (Procedure) Rules (the Rules) to seek review, variation and setting aside of orders dismissing the appeal on 15 May 2026. The Rules for the Court have since been reviewed from the 2016 Rules to the 2024 Rules. For a review, Rule 74 should suffice. A review is allowed where there is an error, a mistake, new evidence, a need for clarification, and, fundamentally, good cause. This is the purpose of Rule 74 of the Court Rules: to allow a party who, for good cause, finds a matter necessary for review or variation. The matter came up in court on 15 May 2026 for the appellants to show cause why the appeal should not be dismissed for failure to adhere to Rules 12, 15, and 18 of the Court Rules. The directions to attend to show cause issued on 8 May 2016 in the presence of the appellant’s advocate. On the due date, 15 May 2026, the respondent was in court while the appellants were absent. There was no cause demonstrated. Under Rule 12, an appeal should be filed within 30 days from the date of the challenged ruling or judgment of the trial court. A Record of Appeal should also be attached. However, where the Record of Appeal is not filed within the 30 days, under Rule 15, an appellant is allowed 60 days to file the same. Where such time is not sufficient, the appellant is allowed to file the record and further seek to file a supplementary record in terms of Rule 18. Thus, by 8 May 2016, the appellants had not filed the Record of Appeal. The judgment sought to be challenged was issued on 21 June 2024 in Nairobi CMELRC No. 981 of 2021. Thus, an appeal filed on 2 July 2024, the Record of Appeal ought to have been filed within 60 days thereof, and such time lapsed. The appellants did not seek leave under Rules 15 or 18. Rule 15(2) thus requires: ***(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.*** This is in recognition that a party may file a Memorandum of Appeal but fail to secure the full record of appeal in time. However, such is not a bar to filing the available Record of Appeal. Indeed, under Rule 16, a party is allowed to file a Supplementary Record of Appeal: ***The appellant may, with the leave of the Court, file and serve a supplementary Memorandum of Appeal or a Supplementary Record of Appeal.*** It is appreciated that these Rules are meant to facilitate the course of justice and secure the right of appeal. However, where a party ignores the Rules and opts to sit back and wait, a notice to show cause rightly issues as herein done on 8 May 2026. Although there was no attendance by the appellants on the material day of 15 May 2026 when the appeal was dismissed for the reasons that the counsel experienced technological challenges, the need to show cause why there is no compliance with Rules 12, 15, and 18 of the Court Rules is not discharged. The reinstatement of the appeal would not serve any useful purpose. Despite the respondent not filing a response, the orders sought lack a foundation. The reinstatement of the appeal will not have addressed the appellants' obvious lapses. Filing the Record of Appeal out of time without leave, and the additional filing of written submissions, do not sanitise the procedures laid out under the Rules; these are not mere technicalities. They ensure the orderly conduct of proceedings and particularly in the hearing of appeals. The lapse in addressing the notice to show cause and failure to secure the appeal within the Rules as set out above renders the application without a foundation. The period of inaction from 2 July 2024 to 27 January 2026, when the appellants indicated they had filed a partial Record of Appeal, is not addressed. As much as the court is keen to address the appeal on the merits, the appellants, well represented by counsel, have failed to address the appeal within the available provisions of Rule 15, 16 and 18 of the Court Rules. The respondent, too, did not take any action herein in response to the appellants' failure to address the appeal. No costs are due. **Accordingly, the application dated 23 June 2026 is without merit and is hereby dismissed. Each party to bear its own costs.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ, JUDGE** **In the presence of:** Court Assistant: Kemboi ……………………………………………… and …………………………………..………