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Court of AppealDismissedCivil Appeal No. E054 of 2021 (Application dated 28th November 2024)

Ochieng v Awanad Enterprises Limited & 2 others (Civil Appeal (Application) E054 of 2021) [2025] KECA 757 (KLR)

Court of Appeal of Kenya
9 May 2025
1,478 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed an appeal attempt because the applicant couldn't explain a 15-month delay or blame his former advocate.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Mombasa, delivered by S. Gatembu Kairu, JA, on 9th May 2025, on the applicant Laban Owino Ochieng's application dated 28th November 2024. The applicant sought leave to file the record of appeal out of time and leave to file out of time an application for leave to appeal against a ruling of the Employment and Labour Relations Court in ELRC Cause No. 66 of 2019, delivered on 18th June 2021, which had struck out his suit as time barred. His earlier appeal (Civil Appeal No. E054 of 2021) had already been struck out on 26th April 2024 as incompetent for being served out of time, and his application to review that ruling was dismissed on 22nd November 2024. Applying the Supreme Court's principles in Salat v IEBC and the Court of Appeal's decision in Fakir Mohamed v Joseph Mugambi, the judge held that the discretion under Rule 4, though unfettered, must be exercised judicially and that the applicant bore the burden of explaining the delay. The record of appeal was filed one year and three months late, and the applicant gave conflicting explanations - delay in obtaining certified proceedings and a former advocate who disappeared - without evidence of any efforts to follow up. Citing Habo Agencies v Musingo, the Court held that blaming counsel is insufficient; litigants must show interest in their cases. The applicant was also on notice of the defects from May 2023 yet did not move the Court until November 2024. The application was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted leave to file the record of appeal out of time
  2. 2.Whether the applicant should be granted leave to file out of time an application for leave to appeal the ELRC ruling of 18th June 2021
  3. 3.Whether the applicant has laid a proper basis for the exercise of the Court's discretion under Rule 4 in his favour

Key legal issues

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01

Exercise of discretion under Rule 4 of the Court of Appeal Rules

Holding

The discretion to extend time, though unfettered, must be exercised judicially; the applicant did not discharge the burden of explaining the delay.

Reasoning

The Court applied the Salat principles and the Fakir Mohamed factors: length and reason for delay, prejudice, and whether the application was brought without undue delay. The record of appeal was filed one year and three months late, and the applicant gave conflicting explanations (delay in obtaining certified proceedings vs an advocate who disappeared) with no evidence of follow-up efforts. The applicant was also on notice of the defect from the respondents' application of 5th May 2023 yet waited until November 2024 to seek extension.

p. 2
02

Blaming former advocates for delay

Holding

Blaming an advocate who 'disappeared' is insufficient; the litigant must show efforts to follow up the matter.

Reasoning

Relying on Habo Agencies Limited v Wilfred Odhiambo Musingo, the Court held that the applicant offered inconsistent explanations and produced no evidence of efforts to trace his former advocate or pursue the file. A litigant remains responsible for the conduct of litigation even when represented, so the advocate's transgressions could not excuse the inordinate delay.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy, not a right, and the applicant bears the burden of explaining the delay to the satisfaction of the court.
  • A litigant cannot simply blame their advocate; parties must show interest in and follow up their cases even when represented by counsel.

Court orders

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  1. 1.The applicant's application dated 28th November 2024 is dismissed with costs to the respondents

The bench

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

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court
ELRC Cause No. 66 of 2019
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and the Appellate Jurisdiction Act (extension of time)

Relief refused

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Leave to file the record of appeal out of time

The applicant failed to satisfactorily explain the delay of one year and three months in filing the record of appeal and did not lay a proper basis for extension of time

p. 3

Leave to file out of time an application for leave to appeal the ELRC ruling of 18th June 2021

The application failed and was dismissed with costs

p. 3

Costs

Application 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.

extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court
p. 2Principles for extension of time
parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel
p. 3Responsibility of litigants for their cases
the applicant's application dated 28th November 2024 fails and is hereby dismissed with costs to the respondents.
p. 3Final orders

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, "Ochieng v Awanad Enterprises Limited & 2 others (Civil Appeal (Application) E054 of 2021) [2025] KECA 757 (KLR)", Case Analysis (2025). Civil Appeal No. E054 of 2021 (Application dated 28th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/757/eng@2025-05-09

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