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ELRCDismissedNotice of Motion dated 18th October 2021 (arising from Mombasa ELRC No. 634 of 2019/2018)· [2021] KEELRC 197 (KLR)

Brinks Security Services Limited v Vincent Amwanga Karani [2021] KEELRC 197 (KLR)

Employment and Labour Relations Court
9 December 2021
ANAgnes Kitiku Nzei
883 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court ruled you can't rescue a late appeal by 'amending' a document that was never a proper appeal in the first place.

What this practically means

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Executive summary

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Brinks Security Services Limited filed a document titled 'Memorandum of Appeal' on 18th February 2021, dissatisfied with the decision of Hon. Lesootia in Mombasa ELRC No. 634 of 2019 delivered on 26th January 2021. The court found that the document, despite its title, was not a memorandum of appeal but a mere notice of intention to appeal, setting out no grounds of appeal and filed under no identifiable law or procedure. No appeal was on record, either within the prescribed time or at all. Under Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016, an appeal must be filed within the time specified or within thirty days where no period is specified; a memorandum must set out concisely the grounds of appeal. Section 79G of the Civil Procedure Act and Order 42 Rule 1(1) of the Civil Procedure Rules restate these requirements. On 19th October 2021 the appellant moved for leave to amend the 'memorandum of appeal' in terms of a draft annexed to the supporting affidavit of Bernard Kyengo Kawea. The respondent opposed, arguing no memorandum capable of amendment existed and that allowing the application would be stealing a match. The court agreed: there was no memorandum of appeal capable of amendment, and allowing the amendment would amount to permitting an appeal filed outside the statutory time. The application dated 18th October 2021 was dismissed with costs to the respondent, with liberty granted to either party to move the court as appropriate so the proceedings could be brought to a close.

Key legal issues

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01

Whether the filed document was a memorandum of appeal

Holding

It was not; it was a mere notice of intention to appeal with no grounds of appeal set out

Reasoning

The court examined the document filed on 18th February 2021 and found that although titled a Memorandum of Appeal, it merely gave notice of intention to appeal against the decision of Hon. Lesootia. It set out no grounds of appeal as required by Rule 8(3) of the ELRC (Procedure) Rules, 2016 and Order 42 Rule 1(1) of the Civil Procedure Rules, and was filed under no identifiable law or procedure.

p. 1
02

Whether leave to amend could cure the defect

Holding

No; there was no memorandum of appeal on record capable of amendment, and allowing the amendment would circumvent the time limits for filing appeals

Reasoning

Time for filing an appeal lapsed thirty days from the decision of 26th January 2021 and no appeal was ever filed. Permitting the applicant to introduce a memorandum of appeal through amendment would allow an out-of-time appeal by the back door, described as stealing a match. The application was therefore dismissed with costs.

p. 2

Legal principles established

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  • An appeal to the ELRC must be filed within the time prescribed, or within thirty days where no period is specified, and a memorandum of appeal must set out concisely the grounds of appeal
  • A notice of intention to appeal is not a memorandum of appeal and cannot be amended as one

Court orders

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  1. 1.The application dated 18th October 2021 is dismissed with costs to the Respondent
  2. 2.Either of the parties may move the court as may be appropriate as the proceedings must be brought to a close

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 8(1)(2), Rule 8(3)
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 1(1)
On appeal from
Employment and Labour Relations Court (subordinate decision of Hon. Lesootia)
ELRC No. 634 of 2019
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 8; Section 79G of the Civil Procedure Act

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, "Brinks Security Services Limited v Vincent Amwanga Karani [2021] KEELRC 197 (KLR)", Case Analysis (2021). Notice of Motion dated 18th October 2021 (arising from Mombasa ELRC No. 634 of 2019/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/197/eng@2021-12-09

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