Unilever Tea Kenya Ltd v Baruku & 24 others (Appeal E001 of 2023) [2023] KEELRC 2370 (KLR)
The bottom line
#Kenya's ELRC gave Unilever Tea more time to appeal a 17-day late filing, stressing substance over technicalities and pausing the underlying case meanwhile.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to file the intended appeal out of time should be granted
Leave granted; the 17-day delay was neither inordinate nor unreasonable and was attributable to counsel, not the applicant, and the memorandum raised triable issues on jurisdiction/res judicata.
The court noted the delay of 17 days in filing the appeal in the High Court and that the wrong-forum filing was a counsel's error subsequently corrected by withdrawal. Applying the substantive justice philosophy post-2010 and the judicial discretion under Section 79G, the court found the delay excusable, no particular prejudice to the respondents, and the intended appeal raising serious triable issues deserving interrogation.
Whether proceedings in the lower court should be stayed
Stay granted pending hearing and determination of the appeal, because the fundamental jurisdictional/res judicata issue would render continuation absurd if the appeal succeeded.
The subject matter of the intended appeal was the fundamental question of jurisdiction based on res judicata, it not being disputed that similar causes between the same parties were compromised by a consent judgment in Nairobi ELRC No 1578 of 2017. Allowing the lower court proceedings to continue would waste judicial time and any inconvenience to the respondents was compensable by costs.
Whether the memorandum of appeal already filed can be deemed duly filed
Deemed duly filed and served; no prejudice arises from the procedural mode of approach.
The court held that a memorandum of appeal is not itself an appeal but a step towards one, and that since 2010 substance and merit prevail over technicalities. The applicant's approach of filing the application in the same file as the memorandum signalled intention to appeal and caused no prejudice to either party.
Legal principles established
#- A memorandum of appeal is not itself an appeal; it is only one step towards filing an appeal and amounts to nothing without the record of appeal.
- Since 2010 courts have moved beyond mere technicalities; substance and merit are the major considerations.
- The discretion to enlarge time under Section 79G must be exercised judiciously on sound legal principles.
- Jurisdiction is everything to a court; a court acting without jurisdiction labours in vain.
Court orders
#- 1.The applicant is granted leave to file an appeal out of time.
- 2.The memorandum of appeal placed on record by the applicant is deemed duly filed and served.
- 3.The applicant shall prepare and file a record of appeal within 30 days of the ruling, failing which the leave shall lapse unless otherwise ordered.
- 4.The proceedings in the lower court in Kericho CMCC Nos 1–25 all of 2019 as consolidated under case No 1 of 2019 are stayed pending the hearing and determination of the appeal.
- 5.The respondents are awarded costs of the application assessed at Kshs 25,000/= to be paid before the hearing of the appeal is directed.
- Jurisdiction invoked
- Sections 79G, 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 and Order 50 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Unilever Tea Kenya Ltd v Baruku & 24 others (Appeal E001 of 2023) [2023] KEELRC 2370 (KLR)", Case Analysis (2023). Notice of motion dated February 14, 2023 (intended appeal from Kericho CMELRC No 1 of 2019 as consolidated with CMELRC Nos 2–25 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2370/eng@2023-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.