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Court of AppealAllowedCivil Application E046 of 2022

Thigah v Borderless Tracking Limited

Court of Appeal
16 December 2022
725 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal let a worker move to kill a dormant appeal because the employer sat on it for over three years.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Mombasa (S. Gatembu Kairu, JA) on an application under rule 4 of the Court of Appeal Rules 2022 for leave to file an application to strike out a notice of appeal. The applicant, Gidraf Njoroge Thigah, had succeeded before the Employment and Labour Relations Court at Mombasa (Linnet Ndolo, J.), which on May 23, 2019 awarded him Kshs. 559,167.00 as compensation for unlawful and unfair termination of employment. The respondent, Borderless Tracking Limited, filed a notice of appeal on May 31, 2019 but took no steps for over three years to lodge a record of appeal, despite typed proceedings being ready. An earlier application to strike out the notice (Civil Application No. 35 of 2021) had been dismissed on February 4, 2022 for being filed out of time without leave. The respondent opposed the present application, citing a three-month delay in refiling after that dismissal. The court held that the respondent's inordinate three-year inaction was the relevant consideration and far outweighed the applicant's shorter delay. It allowed the application, granting the applicant leave to file and serve an application to strike out the notice of appeal within 21 days, and made no orders as to costs. The decision below was not disturbed; the ruling is procedural and does not bind on the merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted leave under rule 4 to file an application to strike out the notice of appeal dated May 31, 2019
  2. 2.Whether the applicant's delay in bringing the application after dismissal of an earlier similar application disentitled him to leave

Key legal issues

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01

Exercise of discretion under rule 4 to grant leave to file an application to strike out a notice of appeal

Holding

Leave granted where the respondent took no steps for over three years to prosecute the intended appeal despite typed proceedings being ready.

Reasoning

The court found the respondent had taken no steps for over three years since filing the notice of appeal, while the ELRC proceedings had long been ready. The applicant's three-month delay after dismissal of an earlier application was not comparable to the respondent's inordinate delay, which the court held was the relevant consideration. Closure of the matter favoured granting leave.

p. 2

Legal principles established

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  • The relevant consideration on an application for leave to strike out a stale notice of appeal is the inordinate delay by the appellant in prosecuting the intended appeal, not the applicant's shorter delay in bringing the application.

Court orders

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  1. 1.Application allowed in terms of prayer 1 of the application dated July 12, 2022
  2. 2.Applicant at liberty to file and serve an application for striking out the notice of appeal within 21 days from the date of delivery of the ruling
  3. 3.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Employment & Labour Relations Court at Mombasa
ELC Cause No. 693 of 2016
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules 2022 (discretionary leave)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It seems that the respondent has not, since filing the notice of appeal the subject of the intended application for striking out, taken steps for over three years in the prosecution of the intended appeal.
p. 2inordinate delay by appellant
I accordingly allow the application in terms of prayer 1 of the application dated July 12, 2022. The applicant is at liberty to file and serve an application for striking out the notice of appeal within 21 days from the date of delivery of this ruling.
p. 2final orders
I make no orders as to costs.
p. 2costs

Issues in the judgment

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minor

Coram lists 'SG KAIRU, JA' but signature reads 'S. GATEMBU KAIRU, FCIArb'; same judge, inconsistent rendering.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Thigah v Borderless Tracking Limited", Case Analysis (2022). Civil Application E046 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1388/eng@2022-12-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.