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ELRCAllowedNairobi ELRC Appeal No. E076 of 2021· [2023] KEELRC 1956 (KLR)

Gitonga v Matimbo (Appeal E076 of 2021) [2023] KEELRC 1956 (KLR)

Employment and Labour Relations Court of Kenya
26 July 2023
3,347 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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An employer's appeal over a Kshs.407,635 award collapsed because she missed a 30-day court deadline, so the worker could finally collect her judgment money.

What this practically means

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Executive summary

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This is a ruling by Gakeri J of the Employment and Labour Relations Court, Nairobi, on a Notice of Motion dated 24th March, 2023 by the Respondent/Applicant (the claimant in the underlying suit, Judith Majuma Matimbo) seeking release of funds deposited in a joint interest-earning account, honouring of a bank guarantee issued by Sidian Bank, and payment of a decretal balance of Kshs.82,430/=, on the premise that the appeal had been dismissed. The lower court (Hon. Kagoni E.M., PM) had awarded her Kshs.407,635.80 with costs. By a ruling of 14th February, 2023, this court declined to dismiss the appeal for want of prosecution but directed the appellant to file the record of appeal within 30 days failing which the appeal would be deemed dismissed. The appellant did not comply, contending that delays in obtaining certified proceedings and an alleged suo moto Notice to Show Cause kept the appeal alive. The court found that no Notice to Show Cause was issued, that the appellant tendered no demonstrable evidence of steps taken or challenges faced after her counsel's single letter of 21st February, 2023, and that the appeal stood dismissed on expiry of the 30 days under Rule 16(4) of the ELRC (Procedure) Rules, 2016. The application was allowed in full: the joint account funds and the guaranteed sum were ordered released to the applicant's advocate's client account, and the appellant was directed to pay the Kshs.82,430/= balance. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the alleged suo moto Notice to Show Cause of 16th March, 2023 was issued

Holding

The appellant failed to demonstrate that any Notice to Show Cause was issued; the court record showed only a mention to confirm compliance

Reasoning

The court examined its record: on 16th March, 2023 no party appeared and a mention was slated for 24th April, 2023. At that mention counsel made no reference to any Notice to Show Cause, and the appellant never filed a copy of the alleged notice despite pleading it in the Grounds of Opposition and Replying Affidavit. The court record was held to be unambiguous and the allegation unsubstantiated.

p. 4
02

Whether the appeal stood dismissed for failure to file the record of appeal within 30 days as directed on 14th February, 2023

Holding

Yes; the appellant failed to file the record within 30 days and offered no demonstrable evidence justifying the delay, so the appeal stood dismissed

Reasoning

The court traced the history: the appellant took no step after obtaining stay on 21st February, 2022; after the 14th February, 2023 directions she wrote one letter six days later seeking certified proceedings but tendered no evidence of follow-up, registry visits, or communications, and made no application for extension before the deadline. Rule 16(4) permits dismissal for non-compliance, and the timelines were intended to jolt an indolent party to act.

p. 7
03

Whether the applicant was entitled to release of the deposited funds, the bank guarantee, and the decretal balance

Holding

Yes; with the appeal dismissed, the applicant, holder of a judgment, was entitled to the fruits of that judgment

Reasoning

The application was precipitated by the appellant's failure to comply with directions and her refusal to cooperate in withdrawing the joint-account funds. The court found the applicant alert rather than obstinate, noted she held a judgment in her favour, and granted all prayers: release of the joint account funds, release of the guaranteed sum, and payment of the Kshs.82,430/= balance of the decretal sum that the appellant had never deposited.

p. 7

Legal principles established

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  • A court may dismiss a suit or appeal for non-compliance with directions given under Rule 16 of the ELRC (Procedure) Rules, 2016
  • Where a party fails to comply with conditional directions (filing the record of appeal within 30 days), the appeal stands dismissed on the expiry of the conditional term
  • A party seeking excusal of non-compliance must tender demonstrable evidence of the steps taken and challenges faced

Court orders

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  1. 1.The funds deposited in the joint Account No. 01192643921900 (Account Name: Kenneth Mwangi Mburu and Associates and Mokaya Omwoyo and Associates, Co-operative Bank, Moi Avenue Branch, Nairobi) be released to the Applicant's Account M.O and Associate Advocate Client Account, Account Number 1282809067
  2. 2.The amount secured by the Bank Guarantee dated 27th April, 2022 be released to the applicant's advocate
  3. 3.The appellant to pay the balance of the decretal sum in the sum of Kshs.82,430/=
  4. 4.Parties shall bear own costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 16(4)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (2)

  • Julius Kiruma Kariuki V Kamau Mwangi & 3 others
    (2011) eKLR
  • Winstar Security Guards Ltd & another V Nathan Mulupi Ndimuli (Indimuli)
On appeal from
Milimani Commercial Courts (Principal Magistrate's Court)
CMEL No. 273 of 2020
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from subordinate courts in employment matters (ELRC Act); Rule 16(4) of the Employment and Labour Relations Court (Procedure) Rules, 2016 invoked on dismissal for non-compliance with directions

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, "Gitonga v Matimbo (Appeal E076 of 2021) [2023] KEELRC 1956 (KLR)", Case Analysis (2023). Nairobi ELRC Appeal No. E076 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1956/eng@2023-07-26

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