Ochieng’ v Awanad Enterprises Limited & 2 others (Civil Appeal E054 of 2021) [2024] KECA 409 (KLR)
The bottom line
#The Court of Appeal struck out an appeal filed six months late, confirming Kenya's appeal filing deadlines are strict and non-negotiable.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to file and serve the record of appeal within the timelines of rules 84(1) and 92(1) of the Court of Appeal Rules, 2022
Non-compliance is not a mere irregularity; it renders the appeal incompetent and invites striking out.
The appellant obtained his certificate of delay on 25th July 2022 and thus had until 25th September 2022 to lodge the record and until 2nd October 2022 to serve it. Instead the record was served on 27th April 2023, more than six months late, and without leave of the Court. Relying on its own precedents, the Court held the timelines are strict, expressed in clear and unambiguous terms, and command obedience; failure to comply invites sure consequences. The appeal was therefore struck out and the merits were not reached.
Proof of the date of filing of the record of appeal where the record bears no filing stamp or payment receipt
The Court proceeded on the certificate of delay dated 15th July 2022 and issued on 25th July 2022 to compute the 60-day period, notwithstanding the absence of a stamp or receipt.
The respondents contended the record was served out of time and gave no indication when it was lodged. The Court found the record, though unstamped and unaccompanied by a payment receipt, contained a certificate of delay issued on 25th July 2022, after which the appellant had 60 days to file and 7 days to serve. Even on this favourable computation the appellant was far out of time, so the deficiency in filing evidence did not affect the outcome.
Sequence of hearing a striking-out Motion and the substantive appeal
The Court elected to determine the Motion first and, depending on the outcome, address the merits.
Both counsel asked the Court to hear the Motion and appeal together and give one conclusive decision. The Court held the better procedural course was to first determine the respondents' Motion under rule 84/86, and only if it failed to proceed to the merits of the appeal. Since the Motion succeeded, the merits were never addressed; the grievances about res judicata and limitation under section 90 of the Employment Act remain undetermined.
Legal principles established
#- The 60-day timeline in rule 84(1) of the Court of Appeal Rules for lodging the record of appeal, and the 7-day service requirement in rule 92(1), are mandatory; non-compliance without leave renders the appeal incompetent
Court orders
#- 1.The appeal is struck out with costs to the respondents
- 2.The Court declined to pronounce itself on the merits of the appeal, the same having fallen by the wayside
- On appeal from
- Employment and Labour Relations Court
- not stated in judgment (claim in Mombasa ELRC; ruling dated 18th June 2021)
- Jurisdiction invoked
- First appellate jurisdiction under the Employment and Labour Relations Court (appeal from ELRC to Court of Appeal); the judgment itself does not cite the enabling provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng’ v Awanad Enterprises Limited & 2 others (Civil Appeal E054 of 2021) [2024] KECA 409 (KLR)", Case Analysis (2024). Civil Appeal (Memorandum of Appeal dated 12th July 2021, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/409/eng@2024-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.