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ELRCAllowedAppeal filed 22nd January 2020 arising from Milimani Chief Magistrate's Court Cause No. 482 of 2018· [2022] KEELRC 644 (KLR)
Patco Industries Limited v Daniel Muli Musau [2022] KEELRC 644 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#Kenya's Employment Court dismissed an employment appeal that sat idle for over two years, confirming that filed appeals can be struck out if not actively prosecuted.
What this practically means
#Executive summary
#The Applicant, Daniel Muli Musau, the respondent in an appeal before the Employment and Labour Relations Court, moved the Court by Notice of Motion under Rules 16 and 8(3) and 8(4) of the ELRC (Procedure) Rules 2016, Order 42 Rule 35 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking dismissal of the appeal for want of prosecution. The appeal was filed on 22nd January 2020 against a judgment of 17th January 2020 by Hon. A.N. Makau, Principal Magistrate, in Milimani CMCC No. 482 of 2018, which had been decided in the Applicant's favour. The Applicant argued that over two years had elapsed without any step to prosecute the appeal, that the record of appeal had not been filed, and that no application for typed proceedings had ever been made; the only letter to the lower court sought 'submissions'. The Respondent opposed the application through submissions only, without filing a replying affidavit, contending that directions had to be issued before an appeal could be dismissed, relying on South Nyanza Sugar Co. Ltd v Autolith Ltd, Suresh Ruginath Raniga, and Kirinyaga General Machinery, and urging that the constitutional right of appeal should not be defeated, citing Allan Otieno Osula v Gurdev Engineering. The Court, Maureen Onyango J, framed a single issue: whether there had been inordinate and unexplained delay justifying dismissal. Finding over two years of unexplained inaction, no record of appeal, and no evidence of any application for proceedings, the Court held the delay inordinate and the appeal an abuse of court process. The Court held that an appeal is a 'suit' and may be dismissed under Rule 16, and dismissed the appeal for want of prosecution on 23rd February 2022, delivering the judgment virtually under COVID-19 directions.
Key legal issues
#01
Whether the appeal should be dismissed for want of prosecution
Holding
Yes. There was no explanation for over two years of inaction; the record of appeal was never filed and no evidence showed the appellant ever applied for typed proceedings.
Reasoning
The appeal was filed on 22nd January 2020 and the appellant took no step to set it down for hearing. The record of appeal was never filed. The alleged letter seeking 'submissions' was not on record and could not be verified. Delay exceeding two years was inordinate and unexplained, amounting to abuse of court process, justifying dismissal under Rule 16.
p. 3
Legal principles established
#- An appeal constitutes a suit for purposes of dismissal for want of prosecution under Rule 16 of the ELRC Procedure Rules.
- Where no action is taken on a suit or appeal within one year, the court may dismiss it for want of prosecution if no reasonable cause is shown.
Court orders
#- 1.The appeal is dismissed for want of prosecution
- On appeal from
- Milimani Chief Magistrate's Court at Nairobi
- Cause No. 482 of 2018
- Jurisdiction invoked
- Rules 16, 8(3) & 8(4) of the Employment and Labour Relations Court (Procedure) Rules 2016; Order 42 Rule 35 Civil Procedure Rules; Sections 1A, 1B & 3A Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patco Industries Limited v Daniel Muli Musau [2022] KEELRC 644 (KLR)", Case Analysis (2022). Appeal filed 22nd January 2020 arising from Milimani Chief Magistrate's Court Cause No. 482 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/644/eng@2022-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.