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ELRCStruck OutNot stated in judgment· [2024] KEELRC 2462 (KLR)

Board of Management Sheikh Zayed Children Welfare Center v Ismail (Employment and Labour Relations Appeal E005 of 2024) [2024] KEELRC 2462 (KLR)

Employment and Labour Relations Court
11 October 2024
MMM. MBARŨ
1,799 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer lost its appeal entirely because it filed late without first asking the court for extra time.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa from a judgment of 16 November 2023 in Mombasa MCELRC No. 435 of 2022, in which the trial court had found that a teacher's employment was unfairly terminated and awarded her notice pay, leave, service pay and 12 months' compensation with costs. The appellant employer sought to have that judgment set aside, contending the claimant had not proved unfair termination, that she was summarily dismissed for gross misconduct and absconding, and that terminal dues and 12 months' compensation were unjustified. The respondent countered that the appeal itself was invalid, having been filed out of time on 2 February 2024 without leave under Section 79G of the Civil Procedure Act, and defended the trial findings on unfair termination citing Sections 41 and 47(5) of the Employment Act. The court, per M. Mbarũ J, addressed the timeliness point first. Applying Section 79G of the Civil Procedure Act, Section 17 of the ELRC Act, the ELRC (Procedure) Rules and Order 50 Rule 4 of the Civil Procedure Rules (excluding the Christmas recess from computation), it found the appellant had 35 days but filed outside that period without any application for extension of time. Filing out of time without leave rendered the appeal invalid, and addressing the merits would be purely academic. The appeal was struck out with each party bearing its own costs. The merits of the unfair termination dispute were therefore never determined. The authorities cited by the parties were not adjudicated upon given the striking out.

Key legal issues

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01

Whether an appeal filed out of time and without leave is competent

Holding

The appeal was struck out as invalid because it was filed outside the 30-day period under Section 79G without any application for extension of time

Reasoning

Judgment was delivered on 16 November 2023 and the Memorandum of Appeal filed 2 February 2024. Even excluding the Christmas recess under Order 50 Rule 4, the appellant had 35 days but filed beyond that. Section 79G permits extension of time only by prior application, which was never made.

p. 4
02

Timeliness of raising the objection that the appeal was out of time

Holding

The court nonetheless held the point had to be addressed first as it went to validity

Reasoning

The respondent failed to raise the objection at the first opportunity, attending several hearings without raising it. The court noted this delay but found the question of an appeal filed out of time was so fundamental it had to be addressed before considering the written submissions.

p. 4

Legal principles established

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  • An appeal filed out of time without leave is invalid
  • A party caught by the limitation period must first seek leave/extension of time before filing an appeal out of time
  • The Christmas recess is excluded in computing time for filing under Order 50 Rule 4

Court orders

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  1. 1.The appeal, being invalid, is struck out
  2. 2.Each party is to bear its costs
On appeal from
Employment and Labour Relations Court, Mombasa (trial court)
MCELRC No. 435 of 2022
Jurisdiction invoked
First appeal under Section 17 of the Employment and Labour Relations Court Act and Section 79G of the Civil Procedure Act

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, "Board of Management Sheikh Zayed Children Welfare Center v Ismail (Employment and Labour Relations Appeal E005 of 2024) [2024] KEELRC 2462 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2462/eng@2024-10-11

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