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ELRCOtherAppeal E003 of 2022· [2024] KEELRC 637 (KLR)
Kiprono v Mogogosiek Tea Factory (Appeal E003 of 2022) (20 March 2024) (Directions) [2024] KEELRC 637 (KLR)
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·~1 min to read original · ~4 min briefThe bottom line
#A Kenyan employment appeal survived because missing court files were not the worker's fault; courts must fix records, not punish litigants.
What this practically means
#Executive summary
#This is a directions ruling, not a substantive judgment, in an appeal (E003 of 2022) by Bett Beoffrey Kiprono against Mogogosiek Tea Factory before the Employment and Labour Relations Court at Kericho, part of a series of eight appeals. When the court retreated to write judgment, it discovered that the original trial lower court file had not been enclosed or attached to the appeal file. Efforts to call for the lower court trial file failed, and, possibly due to a mix-up of files within the series, the appeal file also bore no record of appeal and no submissions by counsel. The court (DN Nderitu, J) therefore found it impossible to render judgment. However, holding that the anomalies were not attributable to the appellant but possibly to his counsel and the court registry, the court declined to take the 'draconian step' of striking out the appeal as incompetent, in the interest of justice. It directed the Deputy Registrar to avail and attach the lower court trial file within 7 days; counsel for the appellant to place the record of appeal and all other materials, including the purportedly filed submissions, on the file within 30 days; and counsel for the respondent to file written submissions within 30 days. Mention was set for 11 June 2024 for further orders and directions. No costs order was made and no authorities were cited.
Key legal issues
#01
Whether an appeal can be determined where the lower court file and record of appeal are missing
Holding
The court could not render judgment and issued directions for reconstruction of the record instead of striking out the appeal.
Reasoning
The original trial court file was not attached to the appeal file despite efforts to call for it, and due to a possible mix-up in a series of eight appeals, the file contained no record of appeal or submissions. The court found it impossible to render judgment but held the anomalies were not the appellant's fault, so striking out would be draconian.
p. 1
Legal principles established
#- Where procedural deficiencies in an appeal file are not attributable to the appellant, the court should not strike out the appeal but direct remediation in the interest of justice
Court orders
#- 1.The court declined to strike out the appeal for incompetence since the anomalies were not attributable to the appellant
- 2.The Deputy Registrar to ensure the lower court trial file is availed and attached to the file within 7 days
- 3.Counsel for the appellant to ensure the record of appeal and all other materials, including the purportedly filed submissions, are placed in the file within 30 days
- 4.Counsel for the respondent to ensure his written submissions are placed on record within 30 days
- 5.Mention on 11th June 2024 for further orders and/or directions
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the lower court (appeal filed as Appeal E003 of 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiprono v Mogogosiek Tea Factory (Appeal E003 of 2022) (20 March 2024) (Directions) [2024] KEELRC 637 (KLR)", Case Analysis (2024). Appeal E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/637/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.