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ELRCStruck OutNot stated in judgment (application dated 18th September 2015, filed 21.9.2015)· [2015] KEELRC 62 (KLR)

Devki Steel Mills Limited v Mbai Moki [2015] KEELRC 62 (KLR)

Employment and Labour Relations Court
14 December 2015
HWHellen Wasilwa
1,199 words in judgment
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The bottom line

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Kenya's Employment Court struck out an appeal filed eight months late, confirming that missed appeal deadlines and duplicate court filings will not be excused.

What this practically means

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Executive summary

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The Applicants filed an application on 21.9.2015 under Certificate of Urgency seeking stay of execution of a judgment entered in the underlying suit and the resulting decree pending interparties hearing. Stay orders were granted ex parte. The Respondents raised a preliminary objection on six grounds: that the appeal was filed out of the 30-day period prescribed by law without leave; that Order 42 Rule 6 of the Civil Procedure Rules does not apply in Employment and Labour Relations matters; that the purported withdrawal of the prior High Court appeal (Civil Appeal No. 94 of 2015) by a letter to the Deputy Registrar dated 9.9.2015 was a nullity; that the appeal was filed while a subsisting appeal existed in the High Court, amounting to abuse of process; that the supporting affidavit of George N. Muriu was incompetent as counsel descended into the arena; and that failure to avail the lower court's ruling constituted material non-disclosure. In reply, the Applicants submitted there was no delay and invoked Article 159(2)(d), Section 20 of the Employment and Labour Relations Act and Rule 36 of the Industrial Court (Procedure) Rules. Lady Justice Hellen Wasilwa held that under Rule 8 of the Industrial Court (Procedure) Rules the appeal, filed on 21.9.2015 against a judgment of 21.1.2015, was out of time and no leave was sought; that filing out of time without leave is not a mere technicality; and that filing two appeals in two different courts is an abuse of process. The preliminary objection was allowed and the appeal struck out with costs to the Respondents.

Key legal issues

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01

Whether the appeal was fatally defective for being filed out of the 30-day period prescribed by Rule 8 of the Industrial Court (Procedure) Rules without leave

Holding

Yes - the appeal filed on 21.9.2015 against a judgment delivered on 21.1.2015 was out of time and no leave was sought, rendering the appeal and the application founded on it incompetent

Reasoning

Rule 8(2) of the Industrial Court (Procedure) Rules requires an appeal to be filed within thirty days of the decision where the written law specifies no period. The judgment was delivered on 21.1.2015, so the deadline was 21.2.2015. The appeal was filed in September 2015 without leave and without steps to withdraw the appeal pending in the High Court. The court held that such delay was not a mere technicality under Article 159 and struck out the appeal.

p. 3
02

Whether the Applicants' prior appeal in the High Court had been validly withdrawn

Holding

A letter to the Deputy Registrar was insufficient to withdraw a suit; a valid withdrawal requires a Notice of withdrawal or discontinuance served on all necessary parties

Reasoning

The Respondents contended that a letter dated 9.9.2015 to the Deputy Registrar could not effect withdrawal of Civil Appeal No. 94 of 2015, as a suit may only be withdrawn by a Notice of withdrawal or discontinuance served on all necessary parties, and there was no order of the High Court showing withdrawal. The court noted the Applicants apparently withdrew the appeal by letter and did not take proper steps to withdraw the pending High Court appeal.

p. 1

Legal principles established

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  • An appeal to the Industrial Court must be filed within thirty days of the decision appealed from where no other period is specified, and filing out of time without leave is not a mere technicality excusable under Article 159
  • Filing two appeals in two different courts simultaneously is an abuse of the court process

Court orders

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  1. 1.The preliminary objection is allowed
  2. 2.The appeal is struck out with costs to the Respondents

Authorities

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Legislation

  • Industrial Court (Procedure) RulesRule 8(1) and (2)
  • Industrial Court (Procedure) RulesRule 36
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Employment and Labour Relations ActSection 20
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (1)

  • Francis Mutunga Musau vs. Devki Steel Mills Limited
    Misc. Application No. 91 of 2015
On appeal from
High Court (Civil Appeal No. 94 of 2015) - underlying appeal referenced; instant appeal lodged in this Court
Civil Appeal No. 94 of 2015 Nairobi (previously filed in the High Court and purportedly withdrawn)
Jurisdiction invoked
Rule 8 of the Industrial Court (Procedure) Rules; Section 20 of the Employment and Labour Relations Act; Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Devki Steel Mills Limited v Mbai Moki [2015] KEELRC 62 (KLR)", Case Analysis (2015). Not stated in judgment (application dated 18th September 2015, filed 21.9.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/62/eng@2015-12-14

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