Riley Falcon Security Services Limited v Corneliuos Ateya Mogere [2021] KEELRC 38 (KLR)
The bottom line
#A Kenyan court refused to dismiss a stalled appeal because the respondent used the wrong procedure, so the case will continue.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal could be dismissed under Order 42 Rule 35(1) for failure to set it down after directions
No - Rule 35(1) applies only where directions have been given under Rule 13, and no directions had been given here
Order 42 Rule 35 contemplates two scenarios for dismissal. The first requires three months to have elapsed after directions under Rule 13 without the appellant setting the appeal down. Since no directions had been given in this appeal, that limb was inapplicable and the appeal could not be dismissed under it, following Njai Stephen v Christine Khatiala Andika and Kirinyaga General Machinery v Hezekiah Mureithi Ireri.
Whether the Respondent could invoke Order 42 Rule 35(2) to move for dismissal of the appeal
No - Rule 35(2) is mandatory and reserves listing for dismissal to the Registrar; the Respondent lacked locus standi and had not first moved the Registrar
Rule 35(2) provides that where an appeal is not set down within one year of service of the memorandum of appeal, the Registrar shall list it before a judge in chambers for dismissal. The provision being mandatory, a respondent cannot bring the application directly, and the applicant had not approached the Registrar or shown the Registrar declined to act.
Legal principles established
#- An appeal cannot be dismissed for want of prosecution under Order 42 Rule 35(1) where no directions have been given under Order 42 Rule 13
- Under Order 42 Rule 35(2), where directions have not been given and one year has elapsed since service of the memorandum of appeal, only the Registrar may list the appeal before a judge in chambers for dismissal; a respondent lacks locus standi to bring such an application
Court orders
#- 1.The application dated 11th August, 2021 is dismissed as premature and lacking merit
- 2.Costs of the application shall be costs in the cause
- 3.The Appellant is directed to set the appeal down for directions within 30 days from the date of the ruling
- 4.The Deputy Registrar is directed to facilitate the issuance of typed proceedings to the Appellant
- On appeal from
- Employment and Labour Relations Court, Kisumu
- Kisumu ELRC No. 18 of 2019
- Jurisdiction invoked
- Order 42 Rule 35(1) and Section 3A of the Civil Procedure Act (appellate jurisdiction of the ELRC over appeals from the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Riley Falcon Security Services Limited v Corneliuos Ateya Mogere [2021] KEELRC 38 (KLR)", Case Analysis (2021). Kisumu ELRC Appeal arising from Kisumu ELRC No. 18 of 2019 (Memorandum of Appeal filed 24th June, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/38/eng@2021-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.