[2023] KEELRC 2285 (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. After a prolonged period of inaction, the court issued a notice to show...
Source-derived case information.
- Citation
- [2023] KEELRC 2285 (KLR)
- Parties
- Appellant: Shine It Limited; Respondent: Khamisi Kombo Piru
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Appeal E030 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
Khamisi Kombo Piru
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 affidavit filed by the appellant after the lapse of the court-ordered period could revive the appeal.
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. After a prolonged period of inaction, the court issued a notice to show cause and granted the appellant 21 days to file an affidavit explaining the delay. The appellant filed the affidavit two days after the deadline, by which time the appeal had already stood dismissed for want of prosecution pursuant to the self-executing court order. The court held that the late affidavit could not revive a non-existent appeal and struck it out, ordering the file...
Court Disposition
Appeal dismissed for want of prosecution.
Orders
- The affidavit of Wafula Wanjala Advocate filed on March 15, 2023 is struck out.
- The appeal stands dismissed for want of prosecution as of March 13, 2023.
Full Case Text
Judgment text and source record
23 paragraphs
Shine it Limited v Piru (Appeal E030 of 2021) [2023] KEELRC 2285 (KLR) (28 September 2023) (Ruling)
Neutral citation: [2023] KEELRC 2285 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Appeal E030 of 2021
AK Nzei, J
September 28, 2023
Between
Shine It Limited
Appellant
and
Khamisi Kombo Piru
Respondent
(Being an Appeal from the Ruling of Hon. A.S. Lesootia -SRM Mombasa delivered on 12th May 2021 in Msa ELRC No. 367 of 2019)
Ruling
1. The appeal herein was instituted on June 9, 2021 vide a memorandum of appeal dated June 8, 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 January 25, 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 February 20, 2023 and 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 February 20, 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 April 26, 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 March 14, 2023 was filed on March 15, 2023, on the 23rd day.
5. It is worth noting that the order made on February 20, 2023, which is reproduced in paragraph 3 of this Ruling, 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 March 13, 2023, the appeal stood dismissed for want of prosecution.
6. It follows that the affidavit of Wafula Wanjala Advocate, filed on March 15, 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:Ms. Juma for AppellantN/A for Respondent