Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCivil Appeal No 57 of 2018· [2024] KEELRC 1308 (KLR)

P.J Dave Flora Limited v Everline Majuma Wanjala (Civil Appeal 57 of 2018) [2024] KEELRC 1308 (KLR)

Employment and Labour Relations Court
30 May 2024
LNLinnet Ndolo
712 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment appeal survived a dismissal attempt because court registry delays — not the appellant — caused the filing holdup.

What this practically means

#

Executive summary

#
This ruling of the Employment and Labour Relations Court (Linnet Ndolo J, delivered virtually at Nairobi on May 30, 2024) determined a notice of motion dated February 7, 2024 by which the respondent sought dismissal of the appellant's appeal for want of prosecution and release of the decretal sum deposited in Prime Bank, Kenindia Branch, to the respondent's advocates. The application, supported by an affidavit of counsel Morris J. Kisia, was grounded on the appellant's failure to compile and file a Record of Appeal as directed. The appellant, through counsel Kennedy Modi, explained that the delay arose from the Kajiado Law Courts registry's failure, over seven months, to avail typed and certified proceedings in Kajiado CMCC No 512 of 2016 despite formal requests of August 7, 2023 and November 20, 2023 and a protest letter. The respondent relied on rule 8(4) of the ELRC (Procedure) Rules; the appellant relied on order 42 rule 35(1) and (2) of the Civil Procedure Rules and the Pinpoint Solutions Limited decision holding that directions must precede dismissal for want of prosecution. The court recalled that it had granted leave to appeal out of time on July 27, 2023 with 60 days to file the record, and held that since a Record of Appeal cannot be filed without trial proceedings, the delay could not be assigned to the appellant. It declined to dismiss the appeal but directed that the record of appeal be filed within 30 days, failing which the appeal would stand dismissed automatically. Costs of the application were made costs in the appeal.

Key legal issues

#
01

Whether the appeal should be dismissed for want of prosecution

Holding

Dismissal was refused because the delay in filing the Record of Appeal was occasioned by the registry's failure to supply typed proceedings despite repeated requests

Reasoning

The court noted its earlier order of July 27, 2023 requiring filing of a record of appeal within 60 days, but found evidence that the appellant wrote to the trial court on August 7, 2023 and November 20, 2023 requesting typed proceedings with no response. Since the record cannot be compiled without proceedings, the delay was beyond the appellant's control. However, given the age of the matter, a final 30-day timeline with automatic dismissal was imposed.

p. 2
02

Whether directions under order 42 rule 13 were a precondition to dismissal for want of prosecution

Holding

The appellant invoked Pinpoint Solutions for the proposition that directions must have been given before dismissal for want of prosecution; the court did not expressly rule on this but resolved the motion on the attribution of delay

Reasoning

The appellant relied on order 42 rule 35(1) and (2) of the Civil Procedure Rules and the Pinpoint Solutions decision, while the respondent relied on rule 8(4) of the ELRC (Procedure) Rules. The court's determination turned on the cause of the delay rather than on a strict construction of either rule, so the competing procedural arguments were not decisively pronounced upon.

p. 2

Legal principles established

#
  • Where a Record of Appeal cannot be filed without trial proceedings and the registry has failed to avail them despite requests, the resulting delay cannot be assigned to the appellant

Court orders

#
  1. 1.The respondent's application for dismissal of the appeal is declined
  2. 2.The record of appeal shall be filed within thirty (30) days from the date of the ruling, failing which the appeal shall stand dismissed without further orders
  3. 3.Costs of the application shall be costs in the appeal

Authorities

#

Legislation

  • Employment and Labour Relations Court (Procedure) Rulesrule 8(4)
  • Civil Procedure Rulesorder 42 rule 35(1) and (2)

Cases cited (1)

  • Pinpoint Solutions Limited & another v Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi)
    [2020] eKLR
On appeal from
Kajiado Law Courts (Chief Magistrate's Court)
CMCC No 512 of 2016
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court under rule 8 of the Employment and Labour Relations Court (Procedure) Rules (leave to appeal out of time earlier granted by ruling dated July 27, 2023)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "P.J Dave Flora Limited v Everline Majuma Wanjala (Civil Appeal 57 of 2018) [2024] KEELRC 1308 (KLR)", Case Analysis (2024). Civil Appeal No 57 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1308/eng@2024-05-30

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