Mwema v Brothershirts Factory Limited (Appeal E217 of 2022) [2024] KEELRC 1453 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Memorandum of Appeal, served 10 months after filing in breach of Order 42 Rule 12, should be struck out
- 2.Whether the Appellant's explanation for the delay in service was satisfactory
Key legal issues
#Whether the delay in service of the Memorandum of Appeal was inordinate
Yes - 10 months' delay against a 7-day statutory requirement is inordinate
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.
Whether the explanation for the delay was sufficient to excuse the default
No - the explanation of a change of clerks was unpersuasive and unsubstantiated
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.
Legal principles established
#- 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
#- 1.The Memorandum of Appeal is struck out
- 2.No order on the costs
- 3.The file is closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
No order on the costs
Quotable passages
#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.
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.
The Memorandum of Appeal is hereby struck out
No order on the costs.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.