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ELRCDismissedELRC Appeal (Milimani); Memorandum of Appeal dated 15th May 2022 against Civil Suit No. E1314 of 2021· [2025] KEELRC 1794 (KLR)

Levs Trading Company Limited v Sibolo (Appeal E074 of 2022) [2025] KEELRC 1794 (KLR)

Employment and Labour Relations Court
19 June 2025
CBC. N. Baari
1,322 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 refused to dismiss an appeal where delays were caused by the court registry, not the appellant.

What this practically means

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Executive summary

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The Applicant, Moses Wanyonyi Sibolo, moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 4th November 2024 seeking dismissal of an appeal filed by Levs Trading Company Limited against a judgment of Principal Magistrate Lesootia Saitabau in Civil Suit No. E1314 of 2021 delivered on 19th May 2022, plus payment of the decretal sum or, in the alternative, half of it, and costs. He argued the appeal had lain idle for over two years without a record of appeal or steps toward hearing, and that the delay was inordinate, inexcusable and prejudicial. The Appellant/Respondent opposed through a replying affidavit of Samuel Karanja, stating it had repeatedly followed up with the court registry for typed proceedings, issued a written reminder on 17th December 2024, and remained ready to prosecute the appeal; it further contended that the reliefs sought were res judicata, the court having granted stay on 20th November 2023 conditional on deposit of Kshs. 397,631/-, which was paid on 5th December 2023. Citing Order 35 Rule 2 of the Civil Procedure Rules, the inherent jurisdiction to prevent abuse of process, the Ivita v Kyumba test, and the Tome v Attorney General line of authority, Justice C. N. Baari found that typed proceedings were still unavailable six months after the appellant's reminder, so the appellant could not be blamed for the delay. The court declined to drive the appellant from the seat of justice for no wrong of its own, dismissed the motion, and directed the Deputy Registrar to urgently supply typed proceedings and fixed the appeal for directions and hearing on priority basis.

Key legal issues

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01

Whether the appeal should be dismissed for want of prosecution

Holding

The motion was dismissed; the appellant demonstrated diligence in seeking typed proceedings which the registry had not supplied

Reasoning

Order 35 Rule 2 permits dismissal where an appeal is not set down within one year, but the court applies the Ivita v Kyumba test. The appellant had taken steps to obtain typed proceedings, including a written reminder to the registry, though without proof of earlier calls. The proceedings remained unavailable six months after the reminder. The court held it would be slow to dismiss an appeal for a delay not attributable to the appellant, and directed priority disposal instead.

p. 3

Legal principles established

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  • A litigant who has diligently sought proceedings that the court registry has not supplied cannot be dismissed for want of prosecution for delay not of its own making
  • Test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay

Court orders

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  1. 1.The Notice of Motion dated 4th November 2024 is dismissed
  2. 2.The Deputy Registrar to urgently facilitate the supply of typed proceedings
  3. 3.The appeal to be set down for directions and hearing on priority basis
On appeal from
Milimani Chief Magistrates Court
Civil Suit No. E1314 of 2021
Jurisdiction invoked
Appellate jurisdiction over appeals from the magistrates' court in employment matters; Order 35 Rule 2 of the Civil Procedure Rules invoked

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, "Levs Trading Company Limited v Sibolo (Appeal E074 of 2022) [2025] KEELRC 1794 (KLR)", Case Analysis (2025). ELRC Appeal (Milimani); Memorandum of Appeal dated 15th May 2022 against Civil Suit No. E1314 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1794/eng@2025-06-19

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