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ELRCPartially AllowedAppeal No E014 of 2024· [2025] KEELRC 2232 (KLR)

Okeyo v Younshen Developers Co Ltd (Appeal E014 of 2024) [2025] KEELRC 2232 (KLR)

Employment and Labour Relations Court
23 July 2025
DMD. K. Njagi Marete
636 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 20 days late, confirming that court vacations do not extend the 30-day appeal deadline under Section 79G.

What this practically means

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Executive summary

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This was a Notice of Motion dated 11th November 2024 before the Employment and Labour Relations Court, in which the Respondent sought striking out of an appeal on the ground that it was filed out of time. The appeal challenged a subordinate court judgment delivered on 30th November 2023 but was filed on 19th January 2024 - some 49 days later - exceeding the 30-day limit in Section 79G of the Civil Procedure Act. The Appellant argued that Order 50 Rule 4 of the Civil Procedure Rules excluded the period between 21st December 2023 and 13th January 2024 (the court vacation), rendering the appeal filed within 26 effective days. The court, per D. K. Njagi Marete J, rejected this argument. It held that Section 79G is clear and mandatory, and that Order 50 Rule 4 applies only to acts under the Rules or court orders, not to statutory time limits prescribed by the Act itself. Relying on Gabriel Osimbo v Chrispinus Mandare and Cook 'N' Lite Limited v Silvester Mutia Jonathan, the court affirmed that subsidiary legislation cannot override the express provisions of a parent statute. The Appellant's authorities (Francis Likhabila v Barclays Bank of Kenya and Slok Construction Limited v Erick Odhiambo Odongo) were distinguished as relating to different contexts of time computation. The court found the appeal filed out of time and without leave, and struck it out. However, although the application sought costs to the Respondent, the court directed that each party bear their own costs of the application.

Key legal issues

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01

Whether the appeal filed on 19th January 2024 against a judgment delivered on 30th November 2023 was filed within the statutory 30-day period under Section 79G of the Civil Procedure Act

Holding

The appeal was filed out of time; Section 79G is clear and mandatory, and the 30 days expired on 30th December 2023, so the appeal filed on 19th January 2024 was out of time and without leave

Reasoning

Section 79G requires an appeal from a subordinate court to be filed within 30 days of the decree or order appealed against. The judgment was delivered on 30th November 2023, so the deadline was 30th December 2023. The appeal filed on 19th January 2024 was prima facie out of time, and no leave to file out of time had been obtained.

p. 2
02

Whether Order 50 Rule 4 of the Civil Procedure Rules, excluding the period between 21st December and 13th January, applies to computation of the Section 79G appeal period

Holding

The reliance on Order 50 Rule 4 was misplaced; the rule applies to acts under the Rules or court orders, not to statutory time limits set by the Civil Procedure Act itself

Reasoning

Order 50 Rule 4 excludes the vacation period for filing pleadings or performing acts under the Rules or court orders. The appeal period is prescribed by Section 79G of the Act, not the Rules. The Court of Appeal and High Court authorities hold that Order 50 Rule 4 does not apply to statutory time limits, and subsidiary legislation cannot override express provisions of the parent statute.

p. 2
03

Whether the out-of-time appeal ought to be struck out

Holding

The Respondent's application was merited and the appeal was struck out

Reasoning

Having found the appeal out of time and filed without leave of the court, the court allowed the Respondent's Notice of Motion seeking striking out, though it declined to award costs to the Applicant and instead directed each party to bear its own costs of the application.

p. 2

Legal principles established

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  • Order 50 Rule 4 of the Civil Procedure Rules (exclusion of the court vacation period) does not apply to the 30-day time limit for filing appeals prescribed by Section 79G of the Civil Procedure Act; subsidiary legislation cannot override the express provisions of the parent statute
  • The computation of time under Section 79G of the Civil Procedure Act is strict and does not accommodate exclusion of vacation periods unless expressly provided for

Court orders

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  1. 1.The appeal is struck out
  2. 2.Each party bears their own costs of the application

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 79G
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 8
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 11(2)
  • Civil Procedure RulesOrder 50 Rule 4

Cases cited (4)

  • Gabriel Osimbo v Chrispinus Mandare
    [2015] eKLR
  • Cook 'N' Lite Limited v Silvester Mutia Jonathan
    [2015] eKLR
  • Francis Likhabila v Barclays Bank of Kenya
    [2020] eKLR
  • Slok Construction Limited v Erick Odhiambo Odongo
    [2022] eKLR
On appeal from
Subordinate court
Jurisdiction invoked
Rule 8 of the Employment and Labour Relations Court (Procedure) Rules 2016 and Rule 11(2) of the Employment and Labour Relations Court (Procedure) Rules, 2024, in relation to an appeal under 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, "Okeyo v Younshen Developers Co Ltd (Appeal E014 of 2024) [2025] KEELRC 2232 (KLR)", Case Analysis (2025). Appeal No E014 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2232/eng@2025-07-23

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