Shem Onkware Ondari v Maisha Mabati Mills & 1 other
The bottom line
#Kenya's Court of Appeal refused to excuse an eight-month delay in filing an appeal, confirming that waiting for a judgment copy is no excuse.
What this practically means
#Executive summary
#Key legal issues
#Test for extension of time under rule 4 of the Court of Appeal Rules
The discretion is unfettered but must be exercised judiciously, considering the length of and reason for delay, prejudice, prospects of the appeal and the constitutional principle that justice should not be delayed
The court restated the Salat formulation: no party has a legal right to extension of time; it is equitable and case-specific, and the applicant bears the burden of justifying it. The court listed the familiar factors drawn from Mutiso, Fakir Mohamed and Imperial Bank and applied them to the eight-month delay here.
Whether the delay was excused by the applicant's wait for a copy of the ruling
No: the ruling was delivered online, the first request for a copy came two months after delivery, and a notice of appeal does not require the ruling anyway; the five-month delay after receipt of the ruling and nine-month delay in serving the application were unexplained
The court found the excuse unconvincing given online delivery of the ruling, and noted that even on the applicant's own showing there was a five-month gap between receiving the ruling and applying, and a nine-month delay in service. Such dilatoriness could not be encouraged or overlooked.
Retrospective operation of the Chief Justice's Practice Directions of 28th April 2023
Practice directions, like legislation, cannot operate retrospectively unless expressly stated, so they could not revive jurisdiction over a decision made before their promulgation
On the prospects of the intended appeal, the judge held on a prima facie basis that the point was settled by the Supreme Court's decision in Samuel Kamau Macharia, meaning the intended appeal attacking the ELRC's refusal to reopen on the basis of the Directions was likely to fail.
Whether the alleged violation of the right to access justice and fair hearing could be raised on appeal
No, because the issue was never raised before, considered or determined by the ELRC
The court declined to countenance a new issue raised for the first time in the intended appeal where the court below had had no opportunity to consider it; accordingly the applicant could not legitimately raise it.
Legal principles established
#- Extension of time is an equitable, discretionary remedy available only to a deserving party who bears the onus of justifying it; no party has a legal right to it
- Practice directions, like legislation, do not operate retrospectively unless expressly stated
- A party does not need the judgment or ruling to lodge a notice of appeal, which is a simple one-page formal document
- A single judge on an extension-of-time application may only assess, on a prima facie basis, that the intended appeal is not frivolous
Court orders
#- 1.Dismissal of the notice of motion dated 18th October 2024
- 2.Costs of the application to the 1st respondent
- On appeal from
- Employment & Labour Relations Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretionary power to extend time for lodging an appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shem Onkware Ondari v Maisha Mabati Mills & 1 other", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1551/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.