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ELRCDismissedAppeal No. 13 of 2016 (Formerly Civil Appeal No. 259 of 2013)· [2016] KEELRC 1098 (KLR)

Ruambuzi Company Limited v Anthony Mwaniki Nzioki [2016] KEELRC 1098 (KLR)

Employment and Labour Relations Court
7 June 2016
HWHellen S. Wasilwa
4,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan employer lost its appeal simply because it was filed five months late without the court's permission — deadlines matter more than the case's merits.

What this practically means

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Executive summary

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This was an appeal (ELRC Appeal No. 13 of 2016, formerly Civil Appeal No. 259 of 2013) by Ruambuzi Company Limited against the judgment of Principal Magistrate Ole Keiwua delivered on 7th December 2012 in Nairobi CMCC No. 2096 of 2007, in which the trial Magistrate struck out Ruambuzi's defence for want of oral evidence and entered judgment for the Respondent, who had claimed terminal dues and damages for unlawful dismissal arising from employment contracted through Ruambuzi as agent for Afrotan Company Limited of Khartoum, Sudan. The Appellant raised seven grounds: striking out the defence for want of oral evidence contravened natural justice and Article 50(1); the true employer was Afrotan, Ruambuzi being an agent of a disclosed principal; the trial court lacked territorial jurisdiction since the contract was performed in Sudan; the claim exceeded the Magistrate's pecuniary jurisdiction; the judgment was inconsistent and failed to specify the prayers allowed. The Respondent countered that the appeal was fatally defective, having been filed about five months after judgment without leave under Section 79G of the Civil Procedure Act. Justice Hellen S. Wasilwa framed six issues but found the threshold jurisdictional issue dispositive. The delay of five months in even applying for proceedings could not be attributed to the trial court, Section 79G was mandatory, and no leave to file out of time had been sought. Relying on Motor Vessel 'Lillian S' v Caltex Oil, Macfoys and Patrick Kirunja Kithinji, the Court held it lacked jurisdiction, declined to consider the merits, and dismissed the appeal with costs to the Respondents on 7th June 2016.

Key legal issues

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01

Whether an appeal filed out of time without leave is properly before the Court

Holding

The appeal, filed five months after judgment without leave, was a nullity and the Court had no jurisdiction; the appeal was dismissed without going to the merits

Reasoning

Judgment was delivered on 7.12.2012 but the appeal was filed on 15th May 2013, well outside the 30-day limit in Section 79G of the Civil Procedure Act. The appellant only requested proceedings on 28.5.2013, five months later, so the delay could not be attributed to the trial court. Section 79G is mandatory and the sole exception - leave for good cause - was never sought. Following Macfoys and Patrick Kirunja Kithinji, the late filing went to jurisdiction, so the Court could not take the matter further.

p. 8

Legal principles established

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  • An appeal filed out of the statutory time limit without leave of the Court is improperly before the Court and robs the Court of jurisdiction to handle it
  • Section 79G of the Civil Procedure Act is mandatory; the only exception is where the appellant first obtains leave to file out of time for good cause
  • Where a Court lacks jurisdiction it cannot take any further step, including determining the merits

Court orders

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  1. 1.The Appeal is dismissed with costs to the Respondents
On appeal from
Chief Magistrate's Court at Nairobi
CMCC No. 2096 of 2007
Jurisdiction invoked
Appeal from subordinate court pursuant to Section 79G of the Civil Procedure Act (Court found itself without jurisdiction as the appeal was filed out of time without leave)

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, "Ruambuzi Company Limited v Anthony Mwaniki Nzioki [2016] KEELRC 1098 (KLR)", Case Analysis (2016). Appeal No. 13 of 2016 (Formerly Civil Appeal No. 259 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1098/eng@2016-06-07

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