Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment (Notice of motion dated 22nd February 2021 in an Appeal filed on 21st August 2019)· [2021] KEELRC 244 (KLR)

Scrub and Surf Cleaning Services v Caroline Alivitsa [2021] KEELRC 244 (KLR)

Employment and Labour Relations Court
9 December 2021
MNMathews N. Nduma
1,211 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to immediately kill a stalled appeal but gave the appellant 30 days to move it forward or lose it.

What this practically means

#

Executive summary

#
The Respondent/Applicant, a decree-holder under a judgment dated 5th August 2019, filed a notice of motion dated 22nd February 2021 seeking dismissal of an appeal filed on 21st August 2019 for want of prosecution, release of deposited funds with accrued interest, and costs. The applicant argued that although the appellant obtained interim stay orders on 6th December 2019, it had failed to set the appeal down for hearing, with the only step being a letter dated 5th October 2020 to the Executive Officer seeking certified typed proceedings. The appellant responded that the application was premature because it had written several letters to the Executive Officer of the Chief Magistrates' Court seeking proceedings and judgment to prepare the record of appeal without success, and that under Rule 8(4) of the ELRC (Procedure) Rules, 2016 and Order 42, Rule 13(4), an appeal cannot proceed to hearing, let alone be dismissed, before the record of appeal is filed and directions given under Section 79B of the Civil Procedure Act. Applying the criteria in Njai Stephen v Christine Khatiala Andik, the court held that dismissal under Order 42, Rule 35(1) was premature because the registrar had never listed the appeal for directions and the lower court file had not been forwarded to the ELRC. However, noting over two years of delay since filing the memorandum and no steps since October 2020, the court placed the appellant on terms: if the record of appeal is not placed before the ELRC within 30 days and a request made for directions within 14 days thereafter, the appeal shall stand dismissed and the interim stay orders deemed discharged. The application otherwise failed, with no costs order granted.

Key legal issues

#
01

Whether an appeal can be dismissed for want of prosecution before directions under Section 79B have been given

Holding

No - dismissal under Order 42, Rule 35 is not available where the registrar has not listed the appeal for directions before a judge

Reasoning

The court relied on Njai Stephen v Christine Khatiala Andik, which identified two scenarios for dismissal under Order 42, Rule 35: failure to list the matter for directions under Section 78B/79B, or failure to set the appeal down after service of memorandum. Here neither scenario was complete because the registrar had never placed the appeal before a judge for directions, and the lower court file had not been forwarded to the ELRC.

p. 2
02

Whether the appellant had been diligent in prosecuting the appeal

Holding

The appellant had not taken any steps beyond the letter of 5th October 2020 requesting proceedings, an inordinate delay of over two years since filing the memorandum

Reasoning

More than two years had lapsed since the memorandum of appeal was filed and about one and a half years since interim stay orders were obtained. The last recorded step was the letter dated 5th October 2020, and no further steps were demonstrated between that date and the filing of the application on 22nd February 2021. This delay justified placing the appellant on terms.

p. 2

Legal principles established

#
  • An appeal cannot be dismissed for want of prosecution under Order 42, Rule 35(1) of the Civil Procedure Rules where directions have not been given under Section 79B of the Civil Procedure Act

Court orders

#
  1. 1.The Appellant is placed on terms: if the record of appeal is not placed before the Employment and Labour Relations Court within 30 days and a request made to the registrar to place the appeal before a judge for directions within 14 days of the expiry of the 30 days, the appeal shall stand dismissed and the interim stay orders deemed discharged
  2. 2.It is so ordered

Authorities

#

Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 8(3) and (4)
  • Civil Procedure Rules, 2010Order 42, Rule 13(4)
  • Civil Procedure Rules, 2010Order 42, Rule 35
  • Civil Procedure Rules, 2010Order 42, Rule 11
  • Civil Procedure ActSection 79B

Cases cited (1)

  • Njai Stephen v Christine Khatiala Andik
    Civil Appeal No. 248 of 2017
On appeal from
Chief Magistrates' Court, Milimani
Jurisdiction invoked
Rule 8(3) and (4) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Order 42 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Scrub and Surf Cleaning Services v Caroline Alivitsa [2021] KEELRC 244 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of motion dated 22nd February 2021 in an Appeal filed on 21st August 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/244/eng@2021-12-09

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