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Court of AppealStruck OutCivil Appeal (Memorandum of Appeal dated 12th July 2021, Mombasa)· [2024] KECA 409 (KLR)

Ochieng’ v Awanad Enterprises Limited & 2 others (Civil Appeal E054 of 2021) [2024] KECA 409 (KLR)

Court of Appeal of Kenya
26 April 2024
2,096 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant sued the respondents and Habo Group of Companies claiming Kshs. 27,605,707/30 as a 3% commission on a construction project, general damages and costs. The respondents applied to strike out the claim under section 90 of the Employment Act, 2007, arguing it was res judicata in light of Mombasa ELRC Cause No. 22 of 2019, dismissed by Rika, J. as statute-barred, and that it offended the limitation period. Byram Ongaya, J., in a ruling dated 18th June 2021, struck out the claim, holding himself bound by Rika, J.'s decision. The appellant appealed on 11 grounds. Before the hearing, the respondents moved under rule 84/86 of the Court of Appeal Rules to strike out the record of appeal as filed and served out of time and the appeal as incompetent. The Court chose to determine the Motion first. Computing time from the certificate of delay issued on 25th July 2022, the appellant had until 25th September 2022 to lodge and until 2nd October 2022 to serve the record; he served it on 27th April 2023, over six months late and without leave. Applying its precedents in John Mutai Mwangi and MAE Properties, the Court held the timelines in rules 84(1) and 92(1) of the Court of Appeal Rules, 2022 are mandatory and that non-compliance renders an appeal incompetent. The appeal was struck out with costs to the respondents, and the merits - including the res judicata and limitation questions - were left undetermined. The binding proposition for lower courts is that strict compliance with appellate filing and service timelines is mandatory.

Key legal issues

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01

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

Holding

Non-compliance is not a mere irregularity; it renders the appeal incompetent and invites striking out.

Reasoning

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.

p. 4
02

Proof of the date of filing of the record of appeal where the record bears no filing stamp or payment receipt

Holding

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.

Reasoning

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.

p. 3
03

Sequence of hearing a striking-out Motion and the substantive appeal

Holding

The Court elected to determine the Motion first and, depending on the outcome, address the merits.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The appeal is struck out with costs to the respondents
  2. 2.The Court declined to pronounce itself on the merits of the appeal, the same having fallen by the wayside

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Employment and Labour Relations Court (Procedure) Rulesrule 17
  • Court of Appeal Rules, 2010rule 84 (as referenced via rule 86 of the 2022 Rules)
  • Court of Appeal Rules, 2022rules 81, 84(1), 86, 92(1), 118

Cases cited (3)

  • John Mutai Mwangi & 26 others v Mwenja Ngure & 4 others
    [2016] eKLR
  • MAE Properties Limited v Joseph Kibe & Another
    [2017] eKLR
  • Laban Owino Ochieng' v Awanad Enterprises Limited, Pili Management Consultants Limited and Hezron Awiti Bollo
    Mombasa ELRC Cause No. 22 of 2019
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

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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, "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.