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ELRCOtherAppeal E004 of 2022· [2024] KEELRC 719 (KLR)

Rotich v Mogogosiek Tea Factory (Appeal E004 of 2022) (20 March 2024) (Directions) [2024] KEELRC 719 (KLR)

Employment and Labour Relations Court
20 March 2024
DNDavid Nderitu
300 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court chose to fix a defective appeal rather than strike it out, ruling that counsel's mistakes should not punish the worker.

What this practically means

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Executive summary

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This is a short directions ruling by DN Nderitu, J of the Employment and Labour Relations Court at Kericho in an appeal (E004 of 2022) by David Kiplangat Rotich against Mogogosiek Tea Factory. When retreating to write judgment, the court identified anomalies in the appeal: the memorandum of appeal dated 27th June 2022 purported to challenge two rulings - one by Hon. E.K. Makori (CM) purportedly delivered on 15th June 2022 and another by Hon. S.M. Mokua (CM) purportedly delivered on even date - yet the prayer sought setting aside only the Makori ruling, while the appellant's submissions addressed the Mokua ruling and the respondent's submissions addressed both. The court held these mistakes and anomalies were attributable to the appellant's counsel and not the appellant himself. Although the court noted it could take the draconian step of striking out the appeal as incompetent, it opted for a justice-oriented course and granted the appellant leave to amend the memorandum of appeal and file a supplementary record of appeal. Directions were issued requiring the appellant to file and serve the amended memorandum and supplementary record within 30 days, with mention fixed for 11th June 2024 for further orders or directions. No costs order was made and no authorities were cited.

Key legal issues

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01

Whether an appeal containing mistakes and anomalies in the memorandum and record should be struck out as incompetent

Holding

The court declined to strike out the appeal and instead granted leave to amend, holding the defects were attributable to counsel and not the appellant, and that justice and fairness favoured amendment.

Reasoning

The court observed that the memorandum of appeal appeared to challenge two rulings by different magistrates, the prayer targeted only one ruling, and the parties' submissions addressed the rulings inconsistently. Rather than adopt the draconian step of striking out, the court prioritised the interest of justice and fairness and allowed the appellant to regularise the appeal by amendment and a supplementary record.

p. 1

Legal principles established

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  • Where defects in an appeal are attributable to counsel rather than the litigant, the court may favour amendment over striking out in the interest of justice and fairness

Court orders

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  1. 1.Leave granted to the appellant to amend the memorandum of appeal and file a supplementary record of appeal
  2. 2.The appellant shall file and serve an amended memorandum of appeal and supplementary record of appeal within 30 days
  3. 3.Mention on 11th June, 2024 for further orders and or directions
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over the subordinate court rulings (Appeal E004 of 2022)

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, "Rotich v Mogogosiek Tea Factory (Appeal E004 of 2022)  (20 March 2024) (Directions) [2024] KEELRC 719 (KLR)", Case Analysis (2024). Appeal E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/719/eng@2024-03-20

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