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ELRCPartially AllowedNotice of Motion dated 16th January 2025 (arising from MCELRC No. E1233 of 2023)· [2025] KEELRC 1509 (KLR)

St Elizabeth Academy Karen Limited t/a St Elizabeth Academy v Odhiambo (Employment and Labour Relations Appeal E019 of 2025) [2025] KEELRC 1509 (KLR)

Employment and Labour Relations Court
23 May 2025
3,119 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Nairobi court let a school appeal 16 days late, ruling that short, explained delays and fixable paperwork mistakes shouldn't block justice.

What this practically means

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Executive summary

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The Applicant, 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, which had dismissed its application to enlarge time to comply with conditional orders setting aside a default judgment of Kshs. 329,959. The Respondent opposed, contending the court lacked jurisdiction for want of leave from the trial court, that the supporting affidavit's annexures offended Rule 9 of the Oaths and Statutory Declarations Rules, and that the Applicant came to court with unclean hands and had misstated facts about access to the ruling via the Case Tracking System. The court framed two issues: whether the Supporting Affidavit should be struck out, and whether leave to appeal out of time should issue. On the first, it held that a Supplementary Supporting Affidavit with duly sealed annexures cured the defect, applying Trust Bank Ltd vs Amalo and section 20 of the ELRC Act. On the second, applying the Salat principles, it found the 16-day delay short, adequately explained, free of prejudice to the Respondent, and brought without undue delay. Leave to file the Memorandum and Record of Appeal within 14 days was granted, the Notice of Appeal was struck out as redundant, and costs were awarded to the respondent in the cause.

Key legal issues

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01

Striking out of the Supporting Affidavit for non-compliance with Rule 9 of the Oaths and Statutory Declarations Rules

Holding

The application was not struck out because the Intended Appellant had filed a Supplementary Supporting Affidavit with duly sealed annexures, curing the defect.

Reasoning

Rule 9 requires all exhibits to affidavits to be securely sealed under the seal of a Commissioner for Oaths. The defect was admitted and remedied by a supplementary affidavit with properly sealed annexures. Guided by Trust Bank Ltd vs Amalo and section 20 of the Employment and Labour Relations Court Act, which requires the court to act without undue regard to technicalities, the court held that disputes should be decided on their merits and declined to strike out the motion.

p. 4
02

Whether leave to file the appeal out of time should be granted 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 and adequately explained, and the respondent would suffer no prejudice.

Reasoning

The appeal should have been filed by 11th January 2025 but was filed on 27th January 2025. Applying the Salat principles, the court found the delay of only 16 days was short, that counsel may plausibly have overlooked the ruling uploaded to the Case Tracking System, and that the explanation was satisfactory. No prejudice would befall the respondent, who would have ample opportunity to defend the appeal, and the application was brought without undue delay.

p. 6
03

Whether the filing of a Notice of Appeal instead of, or in addition to, a Memorandum of Appeal was fatal

Holding

Not fatal; the Notice of Appeal was redundant and was struck out.

Reasoning

An appeal from a magistrates' court to the High Court requires a Memorandum of Appeal, not a Notice of Appeal. The court found the filing of a Notice of Appeal unprocedural, but because a valid draft Memorandum of Appeal dated 16th January 2025 was on record, the irregularity was not fatal and the Notice was struck out as redundant.

p. 5

Legal principles established

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  • Filing of a Notice of Appeal alongside a Memorandum of Appeal in an appeal from the magistrates' court to the High Court is unprocedural but not fatal where a valid Memorandum of Appeal is on record.
  • A supplementary affidavit with duly sealed annexures cures non-compliance with Rule 9 of the Oaths and Statutory Declarations Rules; courts should not strike out pleadings for such technical irregularities.
  • An applicant for extension of time must show good and sufficient cause for the delay and that the justice of the case favours extension, applying the Salat principles.

Court orders

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  1. 1.The Notice of Appeal dated 16th January 2025 is struck out as redundant
  2. 2.The Applicant/Intended Appellant is granted leave to file and serve its Memorandum of Appeal and Record of Appeal within 14 days of the 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; Order 42 Rule 6; Order 9(1); Order 11
  • 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 ActSection 79G
  • Employment and Labour Relations Court (Procedure) Rules 2024Rule 12(2); Rule 18

Cases cited (4)

  • Trust Bank Ltd vs Amalo
    (2003) 1 EA 350
  • Essanji and Another Vs. Solanki
    [1968] EA at page 224
  • Nicholas Kiptoo Arap Korir Salat vs 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 Odhiambo (Employment and Labour Relations Appeal E019 of 2025) [2025] KEELRC 1509 (KLR)", Case Analysis (2025). Notice of Motion dated 16th January 2025 (arising from MCELRC No. E1233 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1509/eng@2025-05-23

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