Hussein v Bille [2025] KEELRC 1069 (KLR)

Hussein v Bille (Appeal E228 of 2024) [2025] KEELRC 1069 (KLR) (3 April 2025) (Ruling)

Neutral citation: [2025] KEELRC 1069 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Appeal E228 of 2024

M Mbarũ, J

April 3, 2025

Between

Ahmed Keynan Hussein

Appellant

and

Abdi Mohamed Bille

Respondent

Ruling

1. The appellant filed an application dated 6 February 2025 seeking to have the firm of Abdullahi Yussuf & Company Advocates come on record for him; the court to stay orders issued on 20 January 2024, which dismissed the appeal for want of attendance and prosecution; and that the respondent be restrained from attaching his property for purposes of sale. The appellant is further seeking that the appeal be reinstated and heard on merit.

2. In the body of the application dated 6 February 2025, the appellant, as the applicant, avers that Salma Mohamed Said's affidavit supports the application. The affidavit attached to the application is that of the appellant.This variance is not explained.

3. The application is because the appellant instructed the firm of M/s Ogoti & Company Advocates to file the appeal against the trial court judgment in Mombasa CMELRC No. E294 of 2022. The appellant learnt that the appeal was dismissed for non-attendance and lack of prosecution when he was served with execution proceedings.

4. The failure to prosecute the appeal was due to counsel's inadvertence and negligence. The appellant is desirous of prosecuting this appeal, which is with merit. Unless the execution is stayed, there will be damage, loss, and great prejudice. The appellant is ready and willing to prosecute the appeal expeditiously once it is reinstated.The respondent did not attend.The appellant made oral submissions in court.

Determination 5. As outlined above, the instant application is grounded on the averments that the supporting affidavit is that of Salma Mohamed Said, but this is not the case. A different affidavit has been filed.

6. It is trite that an applicant must give the grounds upon which an application is premised. Under such grounds, the affidavit to be relied upon should be stated. The attachment is a different and separate affidavit, meaning there is no affidavit as set out in the subject application. The appellant does not address this error, rendering the application incompetent for want of a supporting affidavit.

7. Who is Salma Mohamed Said? Was the intention to have such persons support the application instead of the appellant?

8. On the substantive issue raised by the appellant, the change of advocate post the order dismissing the appeal is regulated under Order 9, Rule 9 of the Civil Procedure Rules. The court's judgment is the final order dismissing the appeal on 20 January 2025.

9. A change of advocates post judgment should be by consent, leave of the court, or as the court may direct. No consent is filed between the advocates on record for the appellant and the new advocates seeking to represent the appellant. No notice is served upon the current advocate to attend and allow the new proposed advocates to come on record.

10. The instant application cannot cure the lapse in addressing the provisions of Order 9 of the Civil Procedure Rules.

11. The appellant is seeking that the orders dismissing the appeal on 20 January 2024 be set aside and the appeal be reinstated.

12. The appeal was filed on 23 October 2024, and due to non-attendance and failure to prosecute it, the court issued a notice to show cause on 16 December 2024. There was no attendance, and the same was dismissed on 20 January 2025. No orders were issued on 20 January 2024, as pleaded.

13. The impugned judgment against which the appeal is premised was delivered on 16 October 2024. The appeal was filed on 23 October 2024.

14. Under Rule 15(2) of the Employment and Labour Relations Court (Procedure) Rules, the appellant had 60 days from the date of filing the appeal to file his Record of Appeal. The time to file the Record of Appeal lapsed on 10 February 2025. Without the Record of Appeal, the appeal is incompetent.

15. Even in a case where the appeal was to be reinstated, which is not the case, the lapse in filing the Record of Appeal would not assist the appellant in any material way. There is no demonstration of any interest in prosecuting the appeal. The failure to file the Record of Appeal is apparent to the court that the order dismissing the appeal was justified.

16. The application dated 6 February 2025 is incompetent for want of a supporting affidavit. The motions of Order 9, Rule 9 of the Civil Procedure Rules are not addressed. There is no Record of Appeal. The application is without merit and is hereby dismissed.The respondent did not attend, no orders on costs.

DELIVERED IN OPEN COURT AT MALINDI THIS 3 DAY OF APRIL 2025. M. MBARŨJUDGEIn the presence of:Court Assistant: Davis Wekesa