Mwema v Brothershirts Factory Limited (Appeal E217 of 2022) [2024] KEELRC 1453 (KLR)
The bottom line
#Filing an appeal on time is not enough in Kenya — you must also serve it within 7 days or risk losing the entire appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in service of the Memorandum of Appeal was inordinate
Yes - 10 months' delay against a 7-day statutory requirement is inordinate
The law requires service of a Memorandum of Appeal within 7 days of filing under Order 42 Rule 12. The Appellant served 10 months late and did not dispute this. Measured against the 7-day requirement, the delay was plainly inordinate and held up prosecution of the appeal. With expanded modes of service including email and social media, service could have been effected with ease.
Whether the explanation for the delay was sufficient to excuse the default
No - the explanation of a change of clerks was unpersuasive and unsubstantiated
The Appellant's affidavit gave no details of the clerks allegedly assigned to effect service or when they left employment, nor was it shown they were ever employed by the Advocates. No affidavit from the Advocates or clerks corroborated the explanation. The Appellant merely relayed information supplied by her Advocates, and modern modes of service made the default hard to explain.
Legal principles established
#- Failure to serve a Memorandum of Appeal within 7 days of filing as required by Order 42 Rule 12, if inordinate and unexplained, justifies striking out the appeal
Court orders
#- 1.The Memorandum of Appeal is struck out
- 2.No order on the costs
- 3.The file is closed
- On appeal from
- Milimani Chief Magistrate's Court (E&LRC Cause)
- CM E&LRC Cause No. 2014 of 2021
- Jurisdiction invoked
- Appellate jurisdiction over summary dismissal claims; service of appeals governed by Order 42 Rule 12 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwema v Brothershirts Factory Limited (Appeal E217 of 2022) [2024] KEELRC 1453 (KLR)", Case Analysis (2024). Not stated in judgment (appeal from Milimani CM E&LRC Cause No. 2014 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1453/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.