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ELRCDismissedAppeal No. 13 of 2016 (Formerly Civil Appeal No. 259 of 2013)

Ruambuzi Company Limited v Anthony Mwaniki Nzioki [2016] KEELRC 1098 (KLR)

Employment and Labour Relations Court
7 June 2016
4,805 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan employer lost its appeal simply because it was filed five months late without the court's permission — deadlines matter more than the case's merits.

What this practically means

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Executive summary

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This was an appeal (ELRC Appeal No. 13 of 2016, formerly Civil Appeal No. 259 of 2013) by Ruambuzi Company Limited against the judgment of Principal Magistrate Ole Keiwua delivered on 7th December 2012 in Nairobi CMCC No. 2096 of 2007, in which the trial Magistrate struck out Ruambuzi's defence for want of oral evidence and entered judgment for the Respondent, who had claimed terminal dues and damages for unlawful dismissal arising from employment contracted through Ruambuzi as agent for Afrotan Company Limited of Khartoum, Sudan. The Appellant raised seven grounds: striking out the defence for want of oral evidence contravened natural justice and Article 50(1); the true employer was Afrotan, Ruambuzi being an agent of a disclosed principal; the trial court lacked territorial jurisdiction since the contract was performed in Sudan; the claim exceeded the Magistrate's pecuniary jurisdiction; the judgment was inconsistent and failed to specify the prayers allowed. The Respondent countered that the appeal was fatally defective, having been filed about five months after judgment without leave under Section 79G of the Civil Procedure Act. Justice Hellen S. Wasilwa framed six issues but found the threshold jurisdictional issue dispositive. The delay of five months in even applying for proceedings could not be attributed to the trial court, Section 79G was mandatory, and no leave to file out of time had been sought. Relying on Motor Vessel 'Lillian S' v Caltex Oil, Macfoys and Patrick Kirunja Kithinji, the Court held it lacked jurisdiction, declined to consider the merits, and dismissed the appeal with costs to the Respondents on 7th June 2016.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Appeal is properly before this Court having been filed 5 months after delivery of judgment and without leave of this Court
  2. 2.Whether trial Court had jurisdiction both pecuniary and geographically to entertain the claim
  3. 3.Whether the trial Magistrate erred in law and fact in finding that the Appellant was the employer of the Respondent and not Argotan Company Limited and entering judgment against the Appellants
  4. 4.Whether the trial Magistrate erred in law in failing to analyze facts before him and therefore arriving at a wrong verdict
  5. 5.Whether the trial Magistrate erred in law in striking out the defence
  6. 6.What remedies to give in the circumstance

Key legal issues

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01

Whether an appeal filed out of time without leave is properly before the Court

Holding

The appeal, filed five months after judgment without leave, was a nullity and the Court had no jurisdiction; the appeal was dismissed without going to the merits

Reasoning

Judgment was delivered on 7.12.2012 but the appeal was filed on 15th May 2013, well outside the 30-day limit in Section 79G of the Civil Procedure Act. The appellant only requested proceedings on 28.5.2013, five months later, so the delay could not be attributed to the trial court. Section 79G is mandatory and the sole exception - leave for good cause - was never sought. Following Macfoys and Patrick Kirunja Kithinji, the late filing went to jurisdiction, so the Court could not take the matter further.

p. 8

Legal principles established

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  • An appeal filed out of the statutory time limit without leave of the Court is improperly before the Court and robs the Court of jurisdiction to handle it
  • Section 79G of the Civil Procedure Act is mandatory; the only exception is where the appellant first obtains leave to file out of time for good cause
  • Where a Court lacks jurisdiction it cannot take any further step, including determining the merits

Court orders

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  1. 1.The Appeal is dismissed with costs to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Chief Magistrate's Court at Nairobi
CMCC No. 2096 of 2007
Jurisdiction invoked
Appeal from subordinate court pursuant to Section 79G of the Civil Procedure Act (Court found itself without jurisdiction as the appeal was filed out of time without leave)

Relief refused

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Setting aside of the trial Magistrate's judgment of 7th December 2012 and all consequent orders

The appeal was filed out of time without leave of the Court, hence the Court lacked jurisdiction to entertain it

p. 9

Dismissal of the Respondent's suit with costs to the Appellant

Same - the appeal itself was dismissed for want of jurisdiction; merits were not addressed

p. 9

Costs

Appeal dismissed with costs to the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

At this point, this Court will fold its hands and not go to the merits of the Appeal. The Appeal therefore fails and is dismissed with costs to the Respondents for the reasons given.
p. 9Final orders - dismissal of appeal
Having considered that this Appeal is filed out of time and without leave of Court, it is improperly before Court and this Court is therefore not ceased of the jurisdiction to handle it.
p. 9Jurisdiction - appeal out of time
Section 79(g) of Civil Procedure Act is couched in mandatory terms and the only provision is where the Appellant seeks leave of Court to file an appeal out of time and then file with Court's approval for good cause.
p. 8Mandatory nature of Section 79G Civil Procedure Act
It is apparent that after judgment was delivered, on 7/12/2012, the Appellants didn't file an appeal within the requisite period. They also only moved the Court for proceeding and judgment on 28.5.2013 – 5 months later and therefore the delay cannot be placed on the trial Court.
p. 8Delay attributable to appellant, not trial court

Issues in the judgment

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minor

Inconsistent spelling of the third party employer company name throughout the judgment (Afrotan/Argotan/Agrotan)

minor

Pecuniary jurisdiction figure for the Principal Magistrate appears to omit a digit - stated as Kshs. 1,000,00.00

minor

The citation in Patrick Kirunja Kithinji refers to 'Article 195' of the Constitution, which does not correspond to the quoted proposition

minor

The memorandum of appeal is dated 15th May 2013 yet the header describes the matter as 'Appeal No. 13 of 2016 (Formerly Civil Appeal No. 259 of 2013)' in the Employment and Labour Relations Court

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, "Ruambuzi Company Limited v Anthony Mwaniki Nzioki [2016] KEELRC 1098 (KLR)", Case Analysis (2016). Appeal No. 13 of 2016 (Formerly Civil Appeal No. 259 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1098/eng@2016-06-07

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