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ELRCStruck OutNot stated in the judgment as provided

Kibos Sugar & Allied Industries v Amuma (Appeal E011 of 2024) [2025] KEELRC 80 (KLR)

Employment and Labour Relations Court
22 January 2025
970 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out an appeal filed over four years late without permission, confirming late appeals collapse for lack of jurisdiction.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Kisumu (Nzioki wa Makau, J) determined a preliminary objection dated 22nd October 2024 raised by the Respondent against an appeal lodged by the Appellant. The Respondent argued that the appeal was statute barred under section 12 of the Employment and Labour Relations Court Act and Rules 8, 12, 13(A), 15 and 18 of the Employment and Labour Relations Court (Procedure) Rules, 2016, that the court lacked jurisdiction, and that the appeal had been filed out of time without leave. She relied on Mukisa Biscuit Co. Ltd v West End Distributors Ltd on the nature of preliminary objections, and on authorities including Salat v IEBC, Kavuu v Badar Hardware, Mohamed Shally Sese v Fulson Company Ltd and Benson Nzambu v Jedida Onduso Akanda on the requirement of leave and the consequences of inordinate, unexplained delay. The Appellant filed no submissions. The court framed a single issue: whether the appeal was filed within time. Noting that both the 2016 and 2024 Rules allow 30 days for appeals from the magistrates' court, and that the judgment appealed against was delivered on 22nd November 2019 while the appeal was filed on 4th April 2024 with no leave sought or granted, the court held that its jurisdiction was unavailable by effluxion of time. The appeal was declared incompetent and struck out with costs to the Respondent. Prior to that, the Respondent had cited a consent of 22nd July 2020 reinstating the judgment and a ruling of Radido J of 28th June 2024 denying stay for inordinate delay.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal was filed within time as per the provisions of the Employment and Labour Relations Court (Procedure) Rules

Key legal issues

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01

Whether the appeal filed on 4th April 2024 against a judgment delivered on 22nd November 2019, without leave, was competent

Holding

The appeal was filed out of time without leave, the court's jurisdiction was therefore unavailable, and the appeal is incompetent and fit for striking out.

Reasoning

Both the 2016 and 2024 Employment and Labour Relations Court (Procedure) Rules provide 30 days post judgment for an appeal from the magistrates' court. The appeal was filed over four years after judgment. No leave was sought or granted to file out of time; only an attempt to stay execution was made. Absence of jurisdiction by effluxion of time is a pure point of law properly raised by preliminary objection, warranting striking out with costs.

p. 3
02

Whether the preliminary objection met the Mukisa Biscuit threshold of a pure point of law

Holding

Yes - limitation and jurisdiction are points of law that need no ascertainment of facts.

Reasoning

Relying on Mukisa Biscuit Co. Ltd v West End Distributors Ltd, a preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit, examples being an objection to jurisdiction or a plea of limitation. Both grounds raised here - limitation and absence of jurisdiction - fall squarely within that definition.

p. 2

Legal principles established

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  • Where the jurisdiction of the court is absent by reason of effluxion of time, a preliminary objection may be taken and the appeal is incompetent.

Court orders

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  1. 1.The appeal is struck out with costs to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court
Jurisdiction invoked
Sections 12 of the Employment and Labour Relations Court Act and Rules 8(1) and (2), 12(1) and (2), 13(A), 15(1) and (3) and 18 of the Employment and Labour Relations Court (Procedure) Rules, 2016 - limitation period for appeals from the magistrates' court

Relief refused

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Leave to file the appeal out of time

No leave was sought or granted before filing the appeal out of time; only an attempt to stay execution was made

p. 2

Costs

The appeal is struck out with costs to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In this particular case, the Court’s jurisdiction was not available when the appeal was filed by reason of efiuxion of time.
p. 3Absence of jurisdiction by effluxion of time
It is the finding of the Court that this instant appeal is incompetent and therefore only fit for striking out with costs to the Respondent.
p. 3Final orders - striking out
So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.
p. 2Definition of a preliminary objection

Issues in the judgment

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material

The judgment does not state the case title, case number, or party names; the record begins mid-matter with the Preliminary Objection.

minor

The judgment refers to a consent dated 22nd July 2020 reinstating the judgment, and to Radido J's ruling of 28th June 2024 denying stay, without explaining the procedural history.

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, "Kibos Sugar & Allied Industries v Amuma (Appeal E011 of 2024) [2025] KEELRC 80 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/80/eng@2025-01-22

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