[2015] KEELRC 476 (KLR)
The court found that the memorandum of appeal was filed on 15th September 2011, whereas the proceedings were ready for collection on 3rd June 2011, giving the appellant until 30th July 2011 to file the appeal. Since the appeal was filed after the expiry of the statutory period and no leave of court was sought or...
Source-derived case information.
- Citation
- [2015] KEELRC 476 (KLR)
- Parties
- Appellant: William Gichamba Kinyanjui; Respondent: David Ngugi Ng’ang’a; Respondent: Arthur Njiriri Kimunya; Respondent: Rahab Mumbi Kairu (Sued as the Board of KamanduraTarambana Water Trust)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1890 of 2014
- Procedural Posture
- Employment and Labour Cause / Ruling on Application to Strike Out Appeal
- Outcome
- Appeal struck out as incompetent for being filed out of time without leave of court.
- Legal Topics
- Appeal Out of Time, Leave of Court, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Gichamba Kinyanjui
Appellant
David Ngugi Ng’ang’a
Respondent
Arthur Njiriri Kimunya
Respondent
Rahab Mumbi Kairu (Sued as the Board of KamanduraTarambana Water Trust)
Respondent
Procedural Posture
Employment and Labour Cause / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal was filed out of time without leave of court.
- 2 Whether the appeal should be struck out as incompetent under section 79G of the Civil Procedure Act.
Ratio Decidendi
The court found that the memorandum of appeal was filed on 15th September 2011, whereas the proceedings were ready for collection on 3rd June 2011, giving the appellant until 30th July 2011 to file the appeal. Since the appeal was filed after the expiry of the statutory period and no leave of court was sought or obtained to file out of time, the appeal was filed contrary to section 79G of the Civil Procedure Act. The court therefore held that the appeal was incompetent and ordered it struck out, awarding costs to the respondent.
Court Disposition
Appeal struck out as incompetent for being filed out of time without leave of court.
Orders
- The appeal is struck out as incompetent.
- The respondent shall have costs of the application.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1890 OF 2014
WILLIAM GICHAMBA KINYANJUI……….…………………..APPELLANT
VERSUS
DAVID NGUGI NG’ANG’A
ARTHUR NJIRIRI KIMUNYA
RAHAB MUMBI KAIRU (Sued as the Board of
KamanduraTarambana Water Trust)………………….RESPONDENTS
RULING
1. By a Notice of Motion dated 16th July, 2014 the respondent seeks an order of this Court striking out the appeal herein on grounds that the same was filed out of time without leave of Court.
2. From the record, the ruling appealed from was delivered on 24th May 2011 while the memorandum of appeal was filed on 15th September, 2011.
3. According to the certificate of delay on record, the proceedings herein were ready for collection on 3rd June, 2011 meaning the claimant had up to 30th July, 2011 to file his appeal.
4. The filing of the appeal on 15th September, 2011 without leave of Court was therefore contrary to section 79 G of the Civil Procedure Act with consequence that the appeal is hereby struck out as incompetent. The respondent shall have costs of the application.
5. It is so ordered.
Dated at Nairobi this 31st day of July 2015
Abuodha J. N.
Judge
Delivered this 2nd day of October 2015
In the presence of:-
……………………………………………………………for the Claimant
and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge