[2022] KEELRC 12822 (KLR)
The court found that the appellants filed their appeal on the 31st day after the judgment of the subordinate court, exceeding the mandatory thirty-day period prescribed by section 79G of the Civil Procedure Act. No leave of court was sought or obtained to file the appeal out of time. The court held that compliance...
Source-derived case information.
- Citation
- [2022] KEELRC 12822 (KLR)
- Parties
- Appellant: Mohammed Kiai Swaleh & 6 others; Respondent: Compact Freight Systems Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Employment and Labour Relations Appeal E065 of 2021
- Procedural Posture
- Employment and Labour Appeal / Judgment
- Outcome
- appeal struck out as incompetent
- Judges
- AK Nzei
- Legal Topics
- Appeal Out of Time, Filing Deadlines, Leave to Appeal, Jurisdiction of Elrc
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Kiai Swaleh & 6 others
Appellant
Compact Freight Systems Limited
Respondent
Procedural Posture
Employment and Labour Appeal / Judgment
Legal Issues
- 1 Whether the appeal was filed within the statutory period prescribed for appeals from subordinate courts to the Employment and Labour Relations Court.
- 2 Whether the court can admit an appeal filed out of time without leave of the court.
Ratio Decidendi
The court found that the appellants filed their appeal on the 31st day after the judgment of the subordinate court, exceeding the mandatory thirty-day period prescribed by section 79G of the Civil Procedure Act. No leave of court was sought or obtained to file the appeal out of time. The court held that compliance with statutory timelines for filing appeals is mandatory, and failure to do so without leave renders the appeal incompetent. Consequently, the appeal was struck out as being bad in law.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck off for being filed out of time without leave of court.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
Swaleh & 6 others v Compact Freight Systems Limited (Employment and Labour Relations Appeal E065 of 2021) [2022] KEELRC 12822 (KLR) (6 October 2022) (Judgment)
Neutral citation: [2022] KEELRC 12822 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Employment and Labour Relations Appeal E065 of 2021
AK Nzei, J
October 6, 2022
Between
Mohammed Kiai Swaleh & 6 others
Claimant
and
Compact Freight Systems Limited
Respondent
(Aappeal from the judgment of the Hon. M.L. Nabibya, Principal Magistrate, delivered on 12th August, 2021 in Mombasa Chief Magistrate’s Court Case No. 254 of 2018 consolidated with 250, 251, 252, 253, 255 and 157 of 2018)
Judgment
1. The appellant herein preferred an appeal to this court against the judgment of Hon ML Nabibya, principal magistrate, delivered on August 12, 2021 in Mombasa Chief Magistrate’s Court Cause No 254 of 2018 (consolidated with Cause Nos 250,251,252,253,254,255,257 and 258). The memorandum of appeal, setting out some six grounds of appeal, was filed in this court’s registry on September 13, 2021.
2. Rule 8(1) & (2) of the Employment & Labour Relations Court (Procedure) Rules 2016 provides as follows:-'(1)where any written law provides for an appeal to the court, an appellant shall file a memorandum of appeal with the court within the time specified for that appeal under the written law.(2)Where no period of appeal is specified in the written law under paragraph (1), an appeal shall be filed within thirty days from the date the decision was delivered.'
3. In the case of an appeal from the subordinate courts to this court, a court of equal status with the High Court, the written law that provides for filing of such an appeal is section 79G of the Civil Procedure Act, which provides, in mandatory terms, as follows:-'Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period anytime which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.Provided an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.'
4. In the present case, the appellant’s appeal was filed outside the thirty days mandatory period. It was filed out of time, on the 31st day, and without the court’s leave. For this reason, the appeal is incompetent and bad in law, and is hereby struck off with no order as to costs.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 6TH DAY OF OCTOBER 2022AGNES KITIKU NZEIJUDGEORDERIn view of restrictions on physical Court operations occasioned by the COVID-19 Pandemic, this Judgment has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of Court fees.AGNES KITIKU NZEIJUDGEAppearance:N/A for AppellantMs Murage for Respondent