Brinks Security Services Limited v Karani (Appeal E004 of 2021) [2022] KEELRC 1343 (KLR)
The bottom line
#Kenya's Employment Court struck out Brinks Security's appeal because blaming a lawyer's mistakes does not justify filing late.
What this practically means
#Executive summary
#Key legal issues
#Whether there was good and sufficient cause for filing the appeal out of time
No; the ineptness of previous counsel is not good and sufficient cause, and the extension application was dismissed with costs.
The Court applied Section 79G of the Civil Procedure Act, noting ELRC is of equal status with the High Court and appeals must be filed within thirty days. Relying on Feroz Begum Qureshi, Daphine Parry and Dilpack, the Court held that where there is no explanation there is no indulgence, and the burden lies on the party seeking indulgence. Counsel's alleged ineptness did not meet the threshold.
Whether the purported memorandum of appeal dated February 9, 2021 should be struck out
Yes; the document is merely a notice of intention to appeal, is not a pleading, and the proceedings not anchored on an appeal on record were struck out.
The Court had already ruled on December 9, 2021 that no memorandum of appeal capable of amendment existed and no appeal was on record. Applying the definition of pleading in Rule 2 of the ELRC (Procedure) Rules 2016, the notice of intention was held not to be a pleading; the striking-out objections based on Coast Projects and Geminia Insurance did not avail since there was no pleading on record at all.
Legal principles established
#- A notice of intention to appeal is not a memorandum of appeal and sets out no grounds of appeal.
- Counsel's ineptness does not constitute good and sufficient cause for extension of time to appeal.
- A notice of intention to file an appeal is not a pleading, and proceedings not anchored on an appeal on record must be struck out.
- Where the ELRC Rules are silent on a procedural issue, the Court reverts to the Civil Procedure Act and Rules made thereunder.
Court orders
#- 1.Dismissal of the Notice of Motion dated January 10, 2022 (extension of time) with costs to the Respondent
- 2.The document dated February 9, 2021 titled 'memorandum of appeal', together with the proceedings herein, are struck out with costs to the Respondent/Applicant
- 3.The decretal sum or any part thereof deposited in any account on the basis of the proceedings/appeal herein shall be released to the decree holder's Advocates
- On appeal from
- Subordinate Court (Mombasa, Hon. Lesootia)
- ELRC Cause No. 634 of 2019 (also referred to as 633 of 2019)
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya 2010; Employment and Labour Relations Court (Procedure) Rules 2016; Section 79G of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brinks Security Services Limited v Karani (Appeal E004 of 2021) [2022] KEELRC 1343 (KLR)", Case Analysis (2022). ELRC Appeal (Mombasa) arising from ELRC Cause No. 633/634 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1343/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.