Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutButali MC ELR Appeal No. 2 of 2018 (Appeal from Butali MC ELR Case No. 2 of 2018)· [2024] KEELRC 820 (KLR)

Frodak Kenya Limited v Makunda (Employment and Labour Relations Appeal E005 of 2023) [2024] KEELRC 820 (KLR)

High Court of Kenya
16 April 2024
JKJ. W. Keli
2,068 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court struck out an employer's appeal because its record of appeal omitted the judgment and decree—omission of these documents is fatal, not fixable.

What this practically means

#

Executive summary

#
Frodak Kenya Limited appealed against the part judgment and decree of Hon. Reuben Sang (SPM), Butali, delivered on 13 June 2023 in Butali MC ELR Case No. 2 of 2018, in which the trial court upheld the termination of the respondent's contract by effluxion of time but awarded him leave allowance, severance pay and underpayment. The appellant sought to have those awards set aside on the basis that the respondent was a piece-rated employee paid all that was due. The appeal was canvassed by written submissions. Before reaching the merits, the court considered the respondent's objection that the appeal was fatally defective. Examining the record of appeal filed on 8 August 2023, the court confirmed it contained no typed and certified decree, judgment, trial proceedings or claimant's submissions. Relying on section 79G of the Civil Procedure Act and Order 42 Rule 13(4) of the Civil Procedure Rules, the court held the decree must compulsorily form part of the record. Following Justice Ombwayo's decision in Lucas Otieno Masaye v Lucia Olewe Kidi, the Supreme Court's decision in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others, and the Court of Appeal's decision in Chege v Suleiman, the court held that failure to attach the decree is a jurisdictional, not merely procedural, defect which divests the court of adjudicatory power. The record of appeal was held incompetent and struck off with costs to the respondent. The substantive grounds on piece-rate employment were therefore never determined.

Key legal issues

#
01

Whether an appeal filed without the decree, judgment and certified proceedings in the record is competent

Holding

The appeal is incompetent and struck out; the decree is a compulsory component of the record under section 79G of the Civil Procedure Act and Order 42 Rule 13(4) of the Civil Procedure Rules

Reasoning

The court examined the record filed on 8 August 2023 and confirmed it lacked the typed and certified decree, judgment, trial proceedings and claimant's submissions. Relying on section 79G of the Civil Procedure Act as read with Order 42 Rule 13(4) of the Civil Procedure Rules, the court held the decree must form part of the record. Following Lucas Otieno Masaye v Lucia Olewe Kidi, Bwana Mohamed Bwana and Chege v Suleiman, failure to attach the decree is a jurisdictional, not procedural, defect rendering the appeal incompetent.

p. 5

Legal principles established

#
  • A record of appeal from a subordinate court must include the decree, judgment and other mandatory documents; omission renders the appeal incompetent and divests the court of jurisdiction.

Court orders

#
  1. 1.The record of appeal filed on 8th August 2023 is held incompetent for failure to include a copy of the certified judgment and decree and is struck off with costs

Authorities

#

Legislation

  • Employment Act
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 13(4)

Cases cited (4)

  • Selle & another v Associated Motor Boat Co. Ltd & others
    (1948) EA 123
  • Lucas Otieno Masaye v Lucia Olewe Kidi
    [2022] eKLR
  • Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others
    [2015] eKLR
  • Chege v Suleiman
    [1988] eKLR
On appeal from
Butali Magistrates' Court
Butali MC ELR Case No. 2 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act (first appeal from subordinate court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Frodak Kenya Limited v Makunda (Employment and Labour Relations Appeal E005 of 2023) [2024] KEELRC 820 (KLR)", Case Analysis (2024). Butali MC ELR Appeal No. 2 of 2018 (Appeal from Butali MC ELR Case No. 2 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/820/eng@2024-04-16

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