Shine it Limited v Piru (Appeal E030 of 2021) [2023] KEELRC 2285 (KLR) (28 September 2023) (Ruling) Neutral citation: [2023] KEELRC 2285 (KLR) REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA APPEAL E030 OF 2021 AK NZEI, J SEPTEMBER 28, 2023 BETWEEN SHINE IT LIMITED ................................................................................ APPELLANT AND KHAMISI KOMBO PIRU ................................................................... RESPONDENT (Being an Appeal from the Ruling of Hon. A.S. Lesootia -SRM Mombasa delivered on 12th May 2021 in Msa ELRC No. 367 of 2019) RULING 1. The appeal herein was instituted on June 9, 2021 vide a memorandum of appeal dated June 8, 2021. The memorandum of appeal was not accompanied by any of the documents stated in Rule 8(4) of the Employment and Labour Relations Court (Procedure) Rules 2016, which provides as follows:“ (4) A memorandum of appeal shall be accompanied by copies of the proceedings, all documentary evidence relied on and a copy of the judgment from the proceedings of the matter being appealed against. Provided that where copies of proceedings are not filed with the memorandum of appeal, the Appellant shall file such copies as soon as possible and within a reasonable time.”, 2. The Appellant did not file the aforementioned documents, either within a reasonable time from the date of filing the memorandum of appeal or all, and did not, for a period of over 20 months, take any action towards prosecution by the appeal. On January 25, 2023, this Court’s Deputy Registrar issued a written notice to the parties herein under Rule 16 of the Employment and Labour Relations Court (Procedure) Rules 2016, calling upon them to attend Court on February 20, 2023 and show cause why the appeal could not be dismissed for want of prosecution. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2285/eng@2023-09-28 1
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3. When the matter came up for notice to show cause before me on February 20, 2023, I made the following orders in the presence of Counsel for both parties:(1) the Appellant is granted 21 days to file an afidavit showing cause why the appeal should not be dismissed for want of prosecution, failing which the appeal shall stand dismissed for want of prosecution. (2) mention on April 26, 2023 for further orders.” 4. The Appellant did not file the ordered afidavit within 21 days. An afidavit of Wafula Wanjala Advocate, shown to have been sworn on March 14, 2023 was filed on March 15, 2023, on the 23rd day. 5. It is worth noting that the order made on February 20, 2023, which is reproduced in paragraph 3 of this Ruling, was time-bound and self executing, and that there having been no show cause afidavit filed by the Appellant at the close of the 21st day, which was March 13, 2023, the appeal stood dismissed for want of prosecution. 6. It follows that the afidavit of Wafula Wanjala Advocate, filed on March 15, 2023, was filed out of time and on a non-existent appeal. The afidavit is hereby struck down, and the Court file is hereby ordered closed. 7. Orders accordingly. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 28TH SEPTEMBER 2023 AGNES KITIKU NZEI JUDGE ORDER This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: Ms. Juma for Appellant N/A for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2285/eng@2023-09-28 2
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