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ELRCPartially AllowedNot stated in the judgment as provided

Juma v Pinkertons’ Kenya Limited (Appeal E164 of 2023) [2025] KEELRC 2161 (KLR)

Employment and Labour Relations Court
18 July 2025
3,297 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out an appeal filed over a year late, ruling it was a nullity, but gave the appellant 60 days to file afresh.

What this practically means

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Executive summary

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The applicant, respondent to the appeal, moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 17th February 2025 seeking to strike out the Memorandum of Appeal and Record of Appeal dated 29th August 2023 for having been filed out of time without leave and for being incomplete. The trial court's judgment had been delivered on 5th August 2022 by Hon. Kagoni E.M (PM). The applicant submitted that under Section 79G of the Civil Procedure Act the appeal ought to have been filed within 30 days; the memorandum and record were lodged on 5th September 2023, over a year later, without leave, and the record omitted the certified copy of proceedings contrary to Order 42 rule 13(4)(c) and (d) of the Civil Procedure Rules. The appellant blamed the court's delay in issuing certified proceedings and his former advocate's maternity leave, invoking the principle that an advocate's mistake should not be visited on a client. Justice J.W. Keli held that the appeal was filed far out of time without leave, that no extension application had been made, and that certification of proceedings does not affect the obligation to file in time. Following its own decision in West Kenya Sugar Co Ltd v Angulu and the Supreme Court's decision in Salat v IEBC, the court treated the out-of-time documents as a nullity; the incomplete record further divested the court of jurisdiction. The advocate's alleged mistake did not excuse the delay, as the appellant made no effort to follow up. The court struck out the memorandum and record of appeal, granted leave of 60 days to file a fresh appeal with hard copies, awarded costs of the application to the applicant, and fixed mention on 22nd September 2025 for compliance and directions.

Questions the Court framed

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

  1. 1.Whether the application seeking to strike out the Memorandum of Appeal and Record of Appeal was merited

Key legal issues

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01

Whether an appeal filed out of time without leave of court is competent

Holding

Such an appeal is a nullity and must be struck out; leave under Section 79G must be sought before lodging an out-of-time appeal

Reasoning

Section 79G of the Civil Procedure Act requires appeals from subordinate courts to be filed within 30 days. The memorandum and record of appeal were filed over a year after judgment, and no application for extension of time was ever made. Following the Supreme Court's decision in Salat v IEBC, documents filed out of time without leave are nullities. The certification of proceedings does not affect the obligation to file the appeal in time.

p. 6
02

Whether the incomplete record of appeal divests the court of jurisdiction

Holding

Yes; a record of appeal lacking a certified copy of proceedings under Order 42 rule 13(4)(c) and (d) is incompetent and divests the court of jurisdiction

Reasoning

The record of appeal did not include a certified copy of the proceedings, contrary to Order 42 rule 13(4)(c) and (d) of the Civil Procedure Rules. Citing Bwana Mohamed Bwana v Silvano Buko Bonaya, a court cannot exercise adjudicatory powers without a record of appeal. As a practical matter, the court cannot determine the appeal without the trial court's proceedings.

p. 4
03

Whether the mistake of the appellant's advocate excuses the delay

Holding

No; the mistake of an advocate cannot cure the delay where the client made no effort to follow up

Reasoning

The appellant blamed his former advocate's maternity leave for the failure to file. The court found the assertions bald and unsupported by evidence that the appellant made any effort to contact the advocate. The case belonged to the appellant, who was obliged to follow up. Article 159 of the Constitution could not aid him because the defect went to the root of the appeal rather than being a mere technicality.

p. 3

Legal principles established

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  • An appeal filed out of time and without leave of court is a nullity and of no legal consequence
  • The incompleteness of a record of appeal divests the court of jurisdiction to determine the appeal

Court orders

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  1. 1.The memorandum of appeal and entire record of appeal (which was incomplete) struck off the record
  2. 2.The appellant granted leave of 60 days to file a fresh appeal in compliance with the rules of the court and provide hard copies to court
  3. 3.Costs of the application to the applicant/respondent
  4. 4.Mention on 22nd September 2025 to confirm compliance and issue directions

The bench

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

majority

Wrote the judgment

On appeal from
Subordinate court (trial court)
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act and Section 79G of the Civil Procedure Act

Relief refused

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Admission of the appeal as filed out of time / substantively hearing the appeal

The appeal was filed way out of time without leave of court and the record was incomplete; the documents were a nullity

p. 6

Costs

Costs of the application to the applicant/respondent

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.

The memorandum of appeal and entire record of appeal (which was incomplete) is struck ofi the record. The appellant is granted leave of 60 days to file a fresh appeal in compliance with the rules of the court and provide hard copies to court. Costs of the application to the applicant / respondent.
p. 6Final orders - striking out and leave to file afresh
an appeal filed out of time and without leave of court, renders such a document a nullity and of no legal consequence
p. 6Effect of out-of-time filing without leave
The incompleteness of the record of appeal divests the court of jurisdiction to consider the legal and factual controversies in the issues before it.
p. 4Jurisdiction and incomplete record of appeal
There is a discernible pattern of chronic indolence in each step of the appeal process.
p. 4Delay and indolence

Issues in the judgment

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minor

Internal inconsistency on the dates of the Memorandum and Record of Appeal

minor

Contradictory filing dates in submissions - applicant says filed 5th September 2023, replying affidavit says filed 2024

minor

Applicant's submissions describe the appellant as having lodged the appeal 'on the 5 of September 2023' while the same submissions elsewhere state the documents were 'dated 23.08.23'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Juma v Pinkertons’ Kenya Limited (Appeal E164 of 2023) [2025] KEELRC 2161 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2161/eng@2025-07-18

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