Kenya Hotels and Allied Workers Union v Praying Mantis Limited (Civil Application E034 of 2022) [2024] KECA 788 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an employer's dormant appeal, confirming notices of appeal expire if the full appeal isn't filed within sixty days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has satisfied the requirements for deeming the notice of appeal withdrawn and striking out the record of appeal under Rules 83, 84 and 86 of the Court of Appeal Rules
Key legal issues
#Whether the respondent's failure to lodge the record of appeal within 60 days warranted deeming the notice of appeal withdrawn and striking out the record of appeal
The application was merited: no letter bespeaking proceedings was filed or served, no certificate of delay was produced, and no explanation for the delay was offered, so the notice was deemed withdrawn and the record struck out.
Rule 84(1) required the respondent to lodge the record of appeal within sixty days or within the extended time allowed by the proviso, which requires a written application for typed proceedings served on the respondent and a certificate of delay. None of these steps was taken. Rule 83 allows the court to deem an uninstituted notice of appeal withdrawn, and the respondent filed no replying affidavit or submissions to rebut the application. The respondent also obtained a stay and sat on it, and signed an unfulfilled consent to liquidate the decretal sum, making the appeal an abuse of process.
Whether the application was filed within the 30-day limitation in the proviso to Rule 86
It was, having been filed within 30 days of the filing of the record of appeal on 14th February, 2022.
The proviso to Rule 86 bars an application to strike out brought more than thirty days after service of the notice of appeal or record of appeal. The record of appeal was filed on 14th February, 2022 and the application was filed on 24th March, 2022, within the prescribed window, so the application was competent.
Legal principles established
#- A notice of appeal lapses if an appeal is not instituted within 60 days, and the court may deem it withdrawn on a simple application showing expiry of the appointed time without lodgment of the appeal.
- Rule 85 is an inbuilt case-management device enabling the court to strike out notices of appeal not followed by records of appeal within 60 days, and the court may act on its own motion.
- An application under Rule 86 to strike out a notice or record of appeal must be brought within 30 days of service of the notice or filing of the record of appeal.
Court orders
#- 1.The record of appeal dated 14th February, 2022 is struck out
- 2.The notice of appeal dated 22nd February, 2021 is deemed as withdrawn
- 3.Costs of the application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 82, 83 and 84 (now 84, 85 and 86) of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, this application is granted, record of appeal dated 14th February, 2022 is struck out and the notice of appeal dated 22nd February, 2021 deemed as withdrawn with costs to the applicant.
Under the same Rule 83, and assuming that the Court will not have sooner made the deeming order, a party may move the court to make it.
Clearly the appeal is an abuse of the court process.
Issues in the judgment
#The judgment dates the notice of appeal as 22nd February 2021 in the opening paragraph and final orders, but states in the body that the notice of appeal was lodged on 25th February, 2021.
The judgment quotes the Mae Properties passage as referring to 'the proviso to Rule 82(1) on exclusion' in the context of Rule 84, an apparent internal inconsistency in rule numbering.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels and Allied Workers Union v Praying Mantis Limited (Civil Application E034 of 2022) [2024] KECA 788 (KLR)", Case Analysis (2024). Civil Application No. E024 of 2022 (implied from Notice of Motion dated 24th March, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/788/eng@2024-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.