Audio Visual Control Systems v Naomi Nekesa Kasuti [2021] KEELRC 500 (KLR)
The bottom line
#A Kenyan employment court refused to strike out an appeal filed one day late, but gave the appellant 60 days to file the record or lose its stay of execution.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was filed out of time
The appeal was filed one day outside the 30-day period prescribed by Rule 8(2) of the ELRC (Procedure) Rules, 2016.
Judgment was delivered on 8th September 2020. Applying Section 57(a) of the Interpretation and General Provisions Act and Order 50 Rule 8 of the Civil Procedure Rules, the day of delivery is excluded and the thirty days were computed accordingly, expiring such that the memorandum of appeal filed on 9th October 2020 was one day late.
Whether the stay orders of 5th November 2020 should be vacated for late filing and delay in filing the record of appeal
The orders were not vacated; the appeal raised triable issues, the decretal sum had been deposited as security, and the Respondent would suffer no prejudice beyond delay.
The court found the grounds of appeal not frivolous and noted that since the decretal sum was deposited in court, the Respondent would not suffer prejudice should the appeal fail. However, the delay in obtaining typed proceedings and filing the record of appeal was unexplained, so a conditional order was made requiring filing within 60 days on pain of the stay lapsing.
Whether the Appellant had explained the delay in filing the record of appeal
The delay was not explained; the Appellant did not demonstrate steps taken to follow up typing of proceedings.
Although the Appellant blamed the lower court for not supplying certified proceedings, no evidence of diligent follow-up was adduced. The court therefore granted a fixed window of 60 days, after which the stay orders would lapse, balancing the interest in having the appeal heard against the Respondent's right to enjoy the fruits of judgment.
Legal principles established
#- Rules of procedure are handmaids of justice and should not be given a pedantic interpretation that denies parties justice; a one-day delay in filing an appeal does not warrant striking it out.
- In computing time under a written law, the day on which the event happens is excluded, per Section 57(a) of the Interpretation and General Provisions Act and Order 50 Rule 8 of the Civil Procedure Rules.
Court orders
#- 1.Application dated 19th February 2021 disallowed; orders of 5th November 2020 (stay of execution, confirmed 25th November 2020) not set aside or vacated
- 2.Appellant to file the record of appeal within 60 days, failing which the orders of stay granted on 5th November 2020 as confirmed on 25th November 2020 will lapse
- On appeal from
- Magistrates' Court (ELRC)
- MC. ELRC 674/2019
- Jurisdiction invoked
- Appeal to the Employment and Labour Relations Court under Rule 8 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Audio Visual Control Systems v Naomi Nekesa Kasuti [2021] KEELRC 500 (KLR)", Case Analysis (2021). ELRC/E060/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/500/eng@2021-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.