St Elizabeth Academy Karen Limited t/a St Elizabeth Academy v Odhiambo (Employment and Labour Relations Appeal E019 of 2025) [2025] KEELRC 1509 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Striking out of the Supporting Affidavit for non-compliance with Rule 9 of the Oaths and Statutory Declarations Rules
The application was not struck out because the Intended Appellant had filed a Supplementary Supporting Affidavit with duly sealed annexures, curing the defect.
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.
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
Leave was granted. The 16-day delay was short and adequately explained, and the respondent would suffer no prejudice.
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.
Whether the filing of a Notice of Appeal instead of, or in addition to, a Memorandum of Appeal was fatal
Not fatal; the Notice of Appeal was redundant and was struck out.
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.
Legal principles established
#- 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
#- 1.The Notice of Appeal dated 16th January 2025 is struck out as redundant
- 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.Mention on 9th June 2025 to confirm compliance and issue further directions
- 4.Costs of the application to the respondent in the cause
- Jurisdiction invoked
- Rule 18 of the Employment and Labour Relations Court (Procedure) Rules 2024 and Section 79G of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.