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ELRCStruck OutELRC Appeal from MCELRC No. 130 of 2018· [2024] KEELRC 2551 (KLR)

Radar Security Limited v Obiele (Employment and Labour Relations Appeal E189 of 2022) [2024] KEELRC 2551 (KLR)

Employment and Labour Relations Court (High Court jurisdiction over appeal)
18 October 2024
1,648 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Respondent sued the Appellant at the Chief Magistrate's Court at Milimani (MCELRC No. 130 of 2018), claiming Kshs 1,128,030.26 for underpaid salary, unpaid weekly rest days, public holidays, annual leave, overtime and 12 days' wages worked before his resignation on 12th January 2017. The Appellant denied underpayment, asserting a contractual salary of Kshs 12,246/= pending review and contending all dues were paid. The trial Magistrate entered judgment for the Respondent for Kshs 712,966.20 plus costs and interest, finding the claim uncontroverted as the Appellant called no witness. The Appellant appealed on four grounds. Before reaching the merits, Stella Rutto J considered whether a competent appeal existed. She found two fatal defects: the Appellant omitted the decree appealed from from the Record of Appeal, contrary to Order 42 Rule 13(4) of the Civil Procedure Rules, and filed the Memorandum of Appeal on 2nd November 2022, beyond the 30-day period in Section 79G of the Civil Procedure Act, without any application for extension of time. Following Lawrence Nguthiru Riccardahw v George Ndirangu and Gregory Kiema Kyuma v Marietta Syokau Kiema, the court held the appeal was fatally incompetent and that it had no jurisdiction to determine it on the merits. The appeal was struck out with costs. The judgment was delivered virtually under COVID-19 directions, reliance being placed on Articles 159(2)(d) and 48 of the Constitution and Section 1B of the Civil Procedure Act.

Key legal issues

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01

Whether an appeal exists where the decree appealed from is omitted from the Record of Appeal

Holding

The omission of the decree rendered the appeal fatally incompetent; the appellate jurisdiction was never properly invoked

Reasoning

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.

p. 2
02

Whether an appeal filed out of time without an application for extension of time is competent

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The instant Appeal is struck out with costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 13(4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Lawrence Nguthiru Riccardahw v George Ndirangu
    [2015] eKLR
  • Gregory Kiema Kyuma v Marietta Syokau Kiema
    [1988] eKLR
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

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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, "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.