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ELRCOtherNot stated in judgment (appeal from Milimani CM E&LRC Cause No. 2014 of 2021)

Mwema v Brothershirts Factory Limited (Appeal E217 of 2022) [2024] KEELRC 1453 (KLR)

Employment and Labour Relations Court
14 June 2024
532 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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Filing an appeal on time is not enough in Kenya — you must also serve it within 7 days or risk losing the entire appeal.

What this practically means

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Executive summary

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The Appellant's claim in Milimani CM E&LRC Cause No. 2014 of 2021 was dismissed on 11th November 2022. She filed a Memorandum of Appeal on 9th December 2022, within time, but served it upon the Respondent only on 17th October 2023 - roughly 10 months late, contrary to Order 42 Rule 12 of the Civil Procedure Rules, which requires service within 7 days of filing. The Respondent, through an application dated 24th November 2023 supported by an affidavit of Veronica Wanza, sought that the Memorandum of Appeal be struck out. The application was heard on affidavits and submissions. The Appellant conceded the late service, attributed the delay to a change of clerks at her Advocates' chambers, and invoked the principle that a litigant should not be punished for counsel's mistakes, asking that the appeal be heard on merit. The Court found the delay inordinate measured against the 7-day requirement. It rejected the explanation as unsubstantiated: no details of the clerks, no proof of their employment, and no affidavit from the Advocates or clerks corroborating the account. The Court observed that with expanded modes of service, including email and social media, service could have been effected 'at the click of a button', and that the default held up the prosecution of the appeal. On 14th June 2024 the Court struck out the Memorandum of Appeal, made no order on costs, and closed the file. The underlying claim dismissal thus stands undisturbed.

Questions the Court framed

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

  1. 1.Whether the Memorandum of Appeal, served 10 months after filing in breach of Order 42 Rule 12, should be struck out
  2. 2.Whether the Appellant's explanation for the delay in service was satisfactory

Key legal issues

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01

Whether the delay in service of the Memorandum of Appeal was inordinate

Holding

Yes - 10 months' delay against a 7-day statutory requirement is inordinate

Reasoning

The law requires service of a Memorandum of Appeal within 7 days of filing under Order 42 Rule 12. The Appellant served 10 months late and did not dispute this. Measured against the 7-day requirement, the delay was plainly inordinate and held up prosecution of the appeal. With expanded modes of service including email and social media, service could have been effected with ease.

p. 2
02

Whether the explanation for the delay was sufficient to excuse the default

Holding

No - the explanation of a change of clerks was unpersuasive and unsubstantiated

Reasoning

The Appellant's affidavit gave no details of the clerks allegedly assigned to effect service or when they left employment, nor was it shown they were ever employed by the Advocates. No affidavit from the Advocates or clerks corroborated the explanation. The Appellant merely relayed information supplied by her Advocates, and modern modes of service made the default hard to explain.

p. 2

Legal principles established

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  • Failure to serve a Memorandum of Appeal within 7 days of filing as required by Order 42 Rule 12, if inordinate and unexplained, justifies striking out the appeal

Court orders

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  1. 1.The Memorandum of Appeal is struck out
  2. 2.No order on the costs
  3. 3.The file is closed

The bench

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

majority

Wrote the judgment

On appeal from
Milimani Chief Magistrate's Court (E&LRC Cause)
CM E&LRC Cause No. 2014 of 2021
Jurisdiction invoked
Appellate jurisdiction over summary dismissal claims; service of appeals governed by Order 42 Rule 12 of the Civil Procedure Rules

Relief refused

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Hearing of the Appeal on merit despite late service

The explanation of change of clerks was not persuasive or substantiated by affidavit evidence from the Advocates or clerks

p. 2

Costs

No order on the costs

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.

10 months, seen against the requirement for service within 7 days, is inordinate delay.
p. 2inordinate delay in service of appeal
The default of 10 months, is hard to explain, given the expanded modes of service of court documents, which now include e-mail and social media.
p. 2expanded modes of service and duty of diligence
The Memorandum of Appeal is hereby struck out
p. 2final orders
No order on the costs.
p. 2final orders - costs

Issues in the judgment

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material

The names of the parties and the appeal case number are not stated anywhere in the judgment; parties are referred to only as 'The Appellant' and 'The Respondent'

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, "Mwema v Brothershirts Factory Limited (Appeal E217 of 2022) [2024] KEELRC 1453 (KLR)", Case Analysis (2024). Not stated in judgment (appeal from Milimani CM E&LRC Cause No. 2014 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1453/eng@2024-06-14

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