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Court of AppealAllowedCivil Application No. E024 of 2022 (implied from Notice of Motion dated 24th March, 2022)· [2024] KECA 788 (KLR)

Kenya Hotels and Allied Workers Union v Praying Mantis Limited

Court of Appeal of Kenya
5 July 2024
HOHannah OkwenguHOH. A. OmondiJNJoel Ngugi
2,301 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an employer's dormant appeal, confirming notices of appeal expire if the full appeal isn't filed within sixty days.

What this practically means

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Executive summary

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The Union, on behalf of five grievants employed at Octopus Club, obtained a judgment in the Employment and Labour Relations Court on 13th November 2020 declaring the terminations unfair and awarding terminal dues, interest and costs. Praying Mantis Limited lodged a notice of appeal and later a record of appeal, but the Union moved the Court of Appeal under former Rules 82, 83 and 84 of the Court of Appeal Rules 2010 (now Rules 84, 85 and 86 of the 2022 Rules) seeking to have the notice of appeal deemed withdrawn and the record of appeal struck out for failure to institute the appeal within the prescribed sixty days, and for failure to serve the notice of appeal and the letter bespeaking proceedings. The respondent filed no replying affidavit or submissions and did not appear at the hearing, which proceeded ex parte. Applying its own precedents in Mae Properties Limited v Joseph Kibe and John Mutai Mwangi v Mwenja Ngure, the Court held that a notice of appeal dies a natural death after sixty days unless the appeal is lodged or time extended, that Rule 85 is an inbuilt case-management clean-up mechanism, and that an appellant cannot rely on the proviso to Rule 84 without a written, served application for proceedings and a certificate of delay. Finding none of these steps taken, no explanation for the delay, the respondent in breach of a consent to liquidate the decretal sum, and the appeal an abuse of process, the Court struck out the record of appeal, deemed the notice of appeal withdrawn, and awarded costs to the applicant. This ruling binds subordinate courts and tribunals on the mandatory timelines for instituting appeals under the Court of Appeal Rules.

Key legal issues

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01

Whether the respondent's failure to lodge the record of appeal within 60 days warranted deeming the notice of appeal withdrawn and striking out the record of appeal

Holding

The application was merited: no letter bespeaking proceedings was filed or served, no certificate of delay was produced, and no explanation for the delay was offered, so the notice was deemed withdrawn and the record struck out.

Reasoning

Rule 84(1) required the respondent to lodge the record of appeal within sixty days or within the extended time allowed by the proviso, which requires a written application for typed proceedings served on the respondent and a certificate of delay. None of these steps was taken. Rule 83 allows the court to deem an uninstituted notice of appeal withdrawn, and the respondent filed no replying affidavit or submissions to rebut the application. The respondent also obtained a stay and sat on it, and signed an unfulfilled consent to liquidate the decretal sum, making the appeal an abuse of process.

p. 5
02

Whether the application was filed within the 30-day limitation in the proviso to Rule 86

Holding

It was, having been filed within 30 days of the filing of the record of appeal on 14th February, 2022.

Reasoning

The proviso to Rule 86 bars an application to strike out brought more than thirty days after service of the notice of appeal or record of appeal. The record of appeal was filed on 14th February, 2022 and the application was filed on 24th March, 2022, within the prescribed window, so the application was competent.

p. 5

Legal principles established

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  • A notice of appeal lapses if an appeal is not instituted within 60 days, and the court may deem it withdrawn on a simple application showing expiry of the appointed time without lodgment of the appeal.
  • Rule 85 is an inbuilt case-management device enabling the court to strike out notices of appeal not followed by records of appeal within 60 days, and the court may act on its own motion.
  • An application under Rule 86 to strike out a notice or record of appeal must be brought within 30 days of service of the notice or filing of the record of appeal.

Court orders

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  1. 1.The record of appeal dated 14th February, 2022 is struck out
  2. 2.The notice of appeal dated 22nd February, 2021 is deemed as withdrawn
  3. 3.Costs of the application to the applicant
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 82, 83 and 84 (now 84, 85 and 86) of the Court of Appeal Rules

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, "Kenya Hotels and Allied Workers Union v Praying Mantis Limited", Case Analysis (2024). Civil Application No. E024 of 2022 (implied from Notice of Motion dated 24th March, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/788/eng@2024-07-05

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