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ELRCOtherNot stated (memorandum of appeal dated June 8, 2021, instituted June 9, 2021)· [2023] KEELRC 2285 (KLR)

Shine it Limited v Piru (Appeal E030 of 2021) [2023] KEELRC 2285 (KLR)

Employment and Labour Relations Court
28 September 2023
ANAgnes Kitiku Nzei
474 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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Missing a 21-day court deadline automatically killed this Kenya employment appeal — late documents filed afterwards were struck out and the file closed.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling at Mombasa concerned an appeal instituted on June 9, 2021 by a memorandum of appeal dated June 8, 2021. The memorandum was not accompanied by the documents required under Rule 8(4) of the Employment and Labour Relations Court (Procedure) Rules 2016, and the appellant took no steps to prosecute the appeal for over 20 months. Following a Rule 16 notice to show cause issued by the Deputy Registrar on January 25, 2023, the court, on February 20, 2023, granted the appellant 21 days to file an affidavit showing cause why the appeal should not be dismissed for want of prosecution, failing which the appeal would stand dismissed, with mention on April 26, 2023. No affidavit was filed within the 21 days, which expired on March 13, 2023. An affidavit of Wafula Wanjala, Advocate, sworn on March 14, 2023 and filed on March 15, 2023 - the 23rd day - was therefore out of time. The court held that the February 20, 2023 order was time-bound and self-executing, so the appeal stood dismissed automatically on the expiry of the 21st day. The late affidavit was consequently filed on a non-existent appeal. The court struck down the affidavit and ordered the court file closed. No costs order was made. The outcome is effectively a dismissal for want of prosecution effected through a self-executing order, not a determination of the appeal's merits.

Key legal issues

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01

Effect of a time-bound, self-executing dismissal order

Holding

The appeal stood dismissed automatically on March 13, 2023 upon failure to file the show-cause affidavit within 21 days; no further order was needed

Reasoning

The court had granted 21 days, failing which the appeal 'shall stand dismissed for want of prosecution.' The 21st day fell on March 13, 2023. No affidavit was filed by then, so the dismissal operated by operation of the order itself, without further direction. Consequently the later affidavit was filed on a non-existent appeal and could not cure the default.

p. 2
02

Fate of a document filed out of time on a dismissed appeal

Holding

The affidavit sworn March 14, 2023 and filed March 15, 2023 was out of time and filed on a non-existent appeal; it was struck down and the file closed

Reasoning

Because the appeal had already stood dismissed on March 13, 2023, the affidavit filed two days later could not be received in the cause. The court therefore struck down the affidavit and ordered the court file closed, effectively confirming the dismissal for want of prosecution.

p. 2

Legal principles established

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  • A self-executing dismissal order takes effect automatically on the expiry of the stipulated period, and filings made thereafter are made on a non-existent appeal

Court orders

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  1. 1.The affidavit of Wafula Wanjala Advocate is struck down
  2. 2.The Court file is ordered closed

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 8(4)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 16
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules 2016, Rules 8(4) and 16

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, "Shine it Limited v Piru (Appeal E030 of 2021) [2023] KEELRC 2285 (KLR)", Case Analysis (2023). Not stated (memorandum of appeal dated June 8, 2021, instituted June 9, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2285/eng@2023-09-28

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