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ELRCOtherAppeal No 13 of 2015· [2016] KEELRC 175 (KLR)

H Young & Co (Ea) Ltd v Samson Okoth Orengo [2016] KEELRC 175 (KLR)

Employment and Labour Relations Court (appeal pending before the Court)
9 December 2016
462 words in judgment
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The bottom line

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Kenya's Employment Court refused to dismiss an appeal over court orders it had never actually issued, then gave the appeal a timetable to proceed.

What this practically means

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Executive summary

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This interlocutory decision of the Court at Nakuru, delivered by Radido Stephen, Judge, on 9 December 2016, dealt with two competing applications in a pending appeal. The Respondent moved the Court by a motion dated 9 August 2016 seeking confirmation of the dismissal of the appeal for want of compliance with orders allegedly issued on 19 February 2016, or in the alternative, directions. The Appellant countered with an application dated 26 October 2016 seeking extension and enlargement of time for filing the Record of Appeal and that the Record of Appeal filed on 14 October 2016 be deemed duly filed and served. The Court examined its record and found no orders of 19 February 2016 requiring compliance; on that date it had in fact declined to dismiss the appeal after accepting the Appellant's explanation for the failure to file a Record of Appeal. The request to confirm dismissal therefore failed. The Court noted that the late filing of the Record of Appeal was an irregularity the Appellant sought to cure, and that the Respondent's alternative prayer for directions paved the way for the appeal to proceed. Granting directions, the Court extended time for filing the Record of Appeal to 13 December 2016, directed service by 15 December 2016, admitted the appeal, allowed the Respondent to file appropriate papers by 20 January 2017, and set a timetable for submissions by both parties, with costs to abide the appeal.

Key legal issues

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01

Whether the appeal stood dismissed for want of compliance with orders issued on 19 February 2016

Holding

The appeal was not dismissed; no orders of 19 February 2016 requiring compliance were found on the record, and on that date the Court had in fact declined to dismiss the appeal after accepting the Appellant's explanation

Reasoning

The Court reviewed its own record and found no orders of 19 February 2016 capable of being breached. What occurred on that date was a refusal to dismiss the appeal because the Appellant's explanation for the late Record of Appeal was accepted. A motion to confirm a dismissal that never occurred could not succeed, though the alternative prayer for directions remained available.

p. 2
02

Whether the Record of Appeal filed on 14 October 2016 should be deemed duly filed by extension of time

Holding

Time was extended and enlarged (if required) up to 13 December 2016, the Record of Appeal deemed properly on record, and the appeal admitted to hearing with a directions timetable

Reasoning

The Court treated the late filing of the Record of Appeal on 14 October 2016 as an irregularity the Appellant sought to cure through its 26 October 2016 application. Rather than penalise the Appellant, the Court exercised its case-management discretion by granting extension of time and issuing a timetable culminating in admission of the appeal.

p. 2

Legal principles established

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  • An appeal cannot be confirmed as dismissed for non-compliance with orders where no such orders exist on the record; a party cannot rely on a failure to comply with orders the Court never issued
  • Where a litigant seeks dismissal of an appeal in the main and directions in the alternative, the grant of directions disposes of the application

Court orders

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  1. 1.The Respondent's request to confirm dismissal of the appeal not granted, no orders of 19 February 2016 having been found on the record
  2. 2.Time for filing Record of Appeal extended and enlarged (if required) up to 13 December 2016
  3. 3.Record of Appeal, if not yet served, to be served before 15 December 2016
  4. 4.Appeal admitted
  5. 5.Respondent at liberty to file any appropriate papers before 20 January 2017
  6. 6.Appellant to file and serve submissions and authorities before 3 February 2017
  7. 7.Respondent to file and serve submissions and authorities before 17 February 2017
  8. 8.Court to give a convenient date for highlighting of submissions if parties so wish
  9. 9.Costs to abide the appeal
Jurisdiction invoked
Not expressly stated; the Court exercised its appellate and case-management powers over the appeal pending before it

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, "H Young & Co (Ea) Ltd v Samson Okoth Orengo [2016] KEELRC 175 (KLR)", Case Analysis (2016). Appeal No 13 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/175/eng@2016-12-09

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