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ELRCPartially AllowedNotice of Motion application dated 16th January 2025 (appeal from MCELRC No. E1237 of 2023 – Peter Shamala Lumunyenyi v St. Elizabeth Academy Limited)· [2025] KEELRC 1500 (KLR)

St Elizabeth Academy Karen Limited t/a St Elizabeth Academy v Lumunyenyi (Employment and Labour Relations Appeal E022 of 2025) [2025] KEELRC 1500 (KLR)

Employment and Labour Relations Court
23 May 2025
3,136 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court gave a school 14 more days to file its appeal after missing the deadline, but struck out a redundant Notice of Appeal and refused a stay it never actually asked for.

What this practically means

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Executive summary

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The Intended Appellant, St. Elizabeth Academy Limited, moved the Employment and Labour Relations Court by Notice of Motion dated 16th January 2025 under Order 50 Rule 6 and Order 42 Rule 6 of the Civil Procedure Rules, seeking leave to appeal out of time against a ruling of the trial magistrate (Hon. R.L. Musiega) delivered on 13th December 2024 dismissing its application to enlarge time to comply with conditional orders setting aside a default judgment of Kshs. 329,959 in favour of the Respondent, Peter Shamala Lumunyenyi. The Respondent opposed, arguing lack of jurisdiction, procedural defects in the Supporting Affidavit's annexures, and non-disclosure. The court framed two issues: whether the Supporting Affidavit should be struck out for non-compliance with Rule 9 of the Commissioners for Oaths Rules, and whether leave to appeal out of time should issue. On the first, the court found the subsequently filed Supplementary Supporting Affidavit with sealed annexures cured the defect and, guided by Trust Bank Ltd v Amalo and section 20 of the ELRC Act, declined to strike out the application. On the second, applying section 79G of the Civil Procedure Act, Rule 18 of the ELRC (Procedure) Rules 2024 and the Salat principles, the court found the 16-day delay short and satisfactorily explained, no prejudice to the Respondent, and no undue delay. The Notice of Appeal was struck out as redundant, but prayers 3 and 4 were allowed: leave to file the appeal out of time was granted, with 14 days to file and serve the Memorandum and Record of Appeal, failing which the appeal stands dismissed. Costs were awarded to the respondent in the cause.

Key legal issues

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01

Whether the Supporting Affidavit should be struck out for unsealed annexures under Rule 9 of the Commissioners for Oaths Rules

Holding

The affidavit was not struck out because the Intended Appellant filed a Supplementary Supporting Affidavit with duly sealed annexures, curing the irregularity

Reasoning

Rule 9 requires exhibits to affidavits to be sealed under the seal of a Commissioner for Oaths. The Respondent objected that the annexures were unsealed. The court found the Intended Appellant had already filed a Supplementary Supporting Affidavit with sealed annexures, remedying the oversight. Guided by Trust Bank Ltd v Amalo and section 20 of the Employment and Labour Relations Court Act requiring the court to act without undue regard to technicalities, the court declined to strike out the application.

p. 4
02

Whether leave should be granted to file the appeal out of time under Section 79G of the Civil Procedure Act and Rule 18 of the ELRC (Procedure) Rules 2024

Holding

Leave was granted. The 16-day delay was short, the reason (overlooking the ruling uploaded to the Case Tracking System) was accepted as satisfactory, no prejudice would be suffered by the Respondent, and the application was not brought with undue delay

Reasoning

The appeal ought to have been filed by 11th January 2025 under Section 79G. The court applied the Salat principles: extension is a discretionary equitable remedy; the applicant must explain the delay; prejudice and undue delay must be considered. The delay of 16 days was short, the explanation plausible, the Respondent would have ample opportunity to defend the appeal, and the application followed the ruling by about one month. Prayers 3 and 4 were allowed with 14 days to file and serve the Memorandum and Record of Appeal.

p. 6
03

Whether filing a Notice of Appeal instead of a Memorandum of Appeal was fatal

Holding

Not fatal; the Notice of Appeal was redundant and struck out because a valid draft Memorandum of Appeal was on record

Reasoning

The court noted the Intended Appellant filed both a Notice of Appeal and a draft Memorandum of Appeal where only a Memorandum was required. Although unprocedural, the presence of a valid draft Memorandum of Appeal dated 16th January 2025 meant the defect caused no prejudice. The Notice of Appeal was struck out as redundant and the court declined to dwell further on the issue.

p. 5

Legal principles established

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  • The discretion to extend time is equitable, not a right, and requires the applicant to explain the delay and show the extension serves the interests of justice
  • A procedural defect such as filing a Notice of Appeal alongside a draft Memorandum of Appeal is not fatal where a valid Memorandum of Appeal exists on record
  • Courts should hear disputes on their merits and discount mere procedural irregularities, acting without undue regard to technicalities

Court orders

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  1. 1.The Notice of Appeal dated 16th January 2025 is struck out as redundant
  2. 2.The Intended Appellant is granted leave to file and serve their Memorandum of Appeal within 14 days of this Ruling; in default, the appeal stands dismissed
  3. 3.Mention on 9th June 2025 to confirm compliance and issue further directions
  4. 4.Costs of the application to the respondent in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 50 Rule 6
  • Civil Procedure Rules 2010Order 42 Rule 6
  • Oaths and Statutory Declarations Act Cap 15Rule 9 of the Commissioners for Oaths (Fees on Affidavits) Rules, Legal Notice Number 374 of 1956
  • Employment and Labour Relations Court ActSection 20(1)
  • Civil Procedure Act 2010Section 79G
  • Court Rules of 2024Rule 12(2)
  • Employment and Labour Relations Court (Procedure) Rules 2024Rule 18
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 9(1)

Cases cited (4)

  • Trust Bank Ltd v Amalo
    (2003) 1 EA 350
  • Essanji and Another v. Solanki
    [1968] EA at page 224
  • Nicholas Kiptoo Arap Korir Salat v the Independent Electoral and Boundaries Commission & Others
    [2014] eKLR
  • Kenya Ports Authority v Silas Obengele
    Civil Application No Nai 297 of 2004 [2006] 2 KLR 112
Jurisdiction invoked
Rule 18 of the Employment and Labour Relations Court (Procedure) Rules 2024 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, "St Elizabeth Academy Karen Limited t/a St Elizabeth Academy v Lumunyenyi (Employment and Labour Relations Appeal E022 of 2025) [2025] KEELRC 1500 (KLR)", Case Analysis (2025). Notice of Motion application dated 16th January 2025 (appeal from MCELRC No. E1237 of 2023 – Peter Shamala Lumunyenyi v St. Elizabeth Academy Limited). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1500/eng@2025-05-23

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