[2023] KEELRC 2315 (KLR)
The court found that the appellant failed to comply with Rule 8(4) of the Employment and Labour Relations Court (Procedure) Rules 2016 by not filing the required documents with the memorandum of appeal or within a reasonable time thereafter. Furthermore, after being granted a final opportunity to show cause within...
Source-derived case information.
- Citation
- [2023] KEELRC 2315 (KLR)
- Parties
- Appellant: Shine It Limited; Respondent: Mesaidi N’Tengure Mwalimu
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Appeal E031 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- AK Nzei
- Legal Topics
- Appeal Dismissal, Want of Prosecution, Procedure Rules Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shine It Limited
Appellant
Mesaidi N’Tengure Mwalimu
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to failure to comply with procedural requirements.
- 2 Whether the late filing of the affidavit by the appellant could revive the appeal after the lapse of the court-ordered deadline.
Ratio Decidendi
The court found that the appellant failed to comply with Rule 8(4) of the Employment and Labour Relations Court (Procedure) Rules 2016 by not filing the required documents with the memorandum of appeal or within a reasonable time thereafter. Furthermore, after being granted a final opportunity to show cause within 21 days, the appellant filed the affidavit two days late. The court held that its order was self-executing and time-bound, and upon expiry of the 21 days without compliance, the appeal stood automatically dismissed for want of prosecution. The subsequent affidavit was filed on a non-existent appeal and was therefore struck out. The court ordered the file closed, confirming the...
Court Disposition
appeal dismissed for want of prosecution
Orders
- The affidavit of Wafula Wanjala Advocate filed on 15/3/2023 is struck out.
- The appeal stands dismissed for want of prosecution as of 13/3/2023.
Full Case Text
Judgment text and source record
23 paragraphs
Shine IT Limited v Mwalimu (Appeal E031 of 2021) [2023] KEELRC 2315 (KLR) (28 September 2023) (Ruling)
Neutral citation: [2023] KEELRC 2315 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Appeal E031 of 2021
AK Nzei, J
September 28, 2023
Between
Shine It Limited
Appellant
and
Mesaidi N’Tengure Mwalimu
Respondent
(Being an Appeal from the Ruling of Hon. A.S. Lesootia -SRM Mombasa delivered on 12th May 2021 in Msa ELRC No. 368 of 2019)
Ruling
1. The appeal herein was instituted on 9/6/2021 vide a memorandum of appeal dated 8/6/2021. The memorandum of appeal was not accompanied by any of the documents stated in Rule 8(4) of the Employment and Labour Relations Court (Procedure) Rules 2016, which provides as follows:-“(4)A memorandum of appeal shall be accompanied by copies of the proceedings, all documentary evidence relied on and a copy of the judgment from the proceedings of the matter being appealed against.Provided that where copies of proceedings are not filed with the memorandum of appeal, the Appellant shall file such copies as soon as possible and within a reasonable time.”
2. The Appellant did not file the aforementioned documents, either within a reasonable time from the date of filing the memorandum of appeal or all, and did not, for a period of over 20 months, take any action towards prosecution by the appeal. On 25/1/2023, this Court’s Deputy Registrar issued a written notice to the parties herein under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules 2016, calling upon them to attend Court on 20/2/2023 and to show cause why the appeal could not be dismissed for want of prosecution.
3. When the matter came up for notice to show cause before me on 20/2/2023, I made the following orders in the presence of Counsel for both parties:-“(1)the Appellant is granted 21 days to file an affidavit showing cause why the appeal should not be dismissed for want of prosecution, failing which the appeal shall stand dismissed for want of prosecution.(2)mention on 26/4/2023 for further orders.”
4. The Appellant did not file the ordered affidavit within 21 days. An affidavit of Wafula Wanjala Advocate, shown to have been sworn on 14/3/2023, was filed in Court on 15/3/2023, on the 23rd day.
5. It is worth noting that the order made on 20/2/2023 was time bound and self executing, and that there having been no show cause affidavit filed by the Appellant at the close of the 21st day, which was 13/3/2023, the appeal stood dismissed for want of prosecution.
6. It follows that the affidavit of Wafula Wanjala Advocate filed on 15/3/2023 was filed out of time and on a non-existent appeal. The affidavit is hereby struck down, and the Court file is hereby ordered closed.
7. Orders accordingly.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 28TH SEPTEMBER 2023AGNES KITIKU NZEIJUDGEORDERThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.AGNES KITIKU NZEIJUDGEAppearance:Miss Juma for AppellantN/A Respondent