Kamili Packers Limited v Kitheka & another (Employment and Labour Relations Appeal E021 of 2022) [2024] KEELRC 2431 (KLR)
The bottom line
#Kenya's High Court refused to revive an appeal the owner ignored for 18 months, ruling that blaming your lawyer is no substitute for showing you acted yourself.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the appeal for want of prosecution should be set aside
The dismissal was justified; the application to set it aside was without merit.
The appeal was filed on 22/2/2022 but the record of appeal was never filed nor was the appeal set down for hearing for one year and eight months. The applicant did not attend the notice-to-show-cause hearing, and its claim that it mis-diarised the date was unsupported - the alleged affidavit to show cause was not attached, and no wrong diarising entry was produced.
Whether blunders of counsel excuse the applicant's inaction
Counsel's blunders alone do not excuse the delay where the party itself took no steps to prosecute the appeal.
While CFC Stanbic Limited v John Maina Githaiga and Edney Adoka Tsune hold that blunders of counsel should not be visited on clients where costs can remedy the situation, growing jurisprudence requires a party to show it took steps itself. Here no evidence was presented that counsel or the applicant took any steps to file the appeal record and set the matter down.
The applicant's explanation of a mis-diarised date
The explanation was casual, unverified and insufficient.
The applicant merely stated it missed the show-cause date due to an inadvertent diarising error, without stating who mis-diarised the matter or attaching evidence of the alleged wrong entry, and the affidavit to show cause dated 15/12/2023 was not attached to the application.
Legal principles established
#- A party cannot rely solely on blunders of counsel to explain inordinate delay; it must demonstrate that it itself took steps to avoid or cure the delay in prosecuting its case
- Under Order 42 Rule 35(4), if an appeal is not set down for hearing within one year after service of the memorandum of appeal, the registrar, after notice to the parties, must list the appeal before a judge in chambers for dismissal
Court orders
#- 1.The notice of motion dated 14/2/2024 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Milimani Chief Magistrate's Court
- CM EC No. 2249 of 2019
- Jurisdiction invoked
- Appellate/review jurisdiction over appeals from the Chief Magistrate's Court under the Civil Procedure Rules (Order 42 Rule 35(4)); specific enabling provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamili Packers Limited v Kitheka & another (Employment and Labour Relations Appeal E021 of 2022) [2024] KEELRC 2431 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 14/2/2024; appeal from Milimani CM EC No. 2249 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2431/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.