Radar Security Limited v Obiele (Employment and Labour Relations Appeal E189 of 2022) [2024] KEELRC 2551 (KLR)
The bottom line
#The Employment Court struck out an employer's appeal because it missed the 30-day filing deadline and omitted the decree, so the Kshs 712,966 award stands.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal exists where the decree appealed from is omitted from the Record of Appeal
The omission of the decree rendered the appeal fatally incompetent; the appellate jurisdiction was never properly invoked
Order 42 Rule 13(4) of the Civil Procedure Rules lists the judgment, order or decree appealed from among the mandatory documents for a complete Record of Appeal. Following Lawrence Nguthiru Riccardahw v George Ndirangu, the court held that without the decree there is in effect no appeal, and the question of existence of an appeal must be determined in limine before merits.
Whether an appeal filed out of time without an application for extension of time is competent
The Memorandum of Appeal filed on 2nd November 2022, more than 30 days after the judgment of 9th September 2022, was outside Section 79G; no application for admission out of time was made, dealing a fatal blow to the appeal
Section 79G requires appeals from subordinate courts to be filed within 30 days, with admission out of time only upon a showing of good and sufficient cause. The appellant neither complied with the timeline nor sought extension, so the appeal could not be admitted. Following Gregory Kiema Kyuma v Marietta Syokau Kiema, the only permissible route was extension of time, which was never sought.
Legal principles established
#- A decree or order appealed from is a mandatory part of the Record of Appeal; without it there is, in effect, no appeal
- An appeal filed outside the 30-day period under Section 79G of the Civil Procedure Act without an extension of time is incompetent
Court orders
#- 1.The instant Appeal is struck out with costs
- On appeal from
- Chief Magistrate's Court at Milimani (Employment and Labour Relations)
- MCELRC No. 130 of 2018
- Jurisdiction invoked
- Appellate jurisdiction under Section 79G of the Civil Procedure Act and Order 42 Rule 13(4) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Radar Security Limited v Obiele (Employment and Labour Relations Appeal E189 of 2022) [2024] KEELRC 2551 (KLR)", Case Analysis (2024). ELRC Appeal from MCELRC No. 130 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2551/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.