Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment· [2025] KECA 1551 (KLR)

Shem Onkware Ondari v Maisha Mabati Mills & 1 other

Court of Appeal of Kenya
3 October 2025
1,621 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
This was a single-judge application under rule 4 of the Court of Appeal Rules seeking extension of time to appeal against an Employment & Labour Relations Court ruling of 15th February 2024 (Manani J), which had set aside as a nullity a Chief Magistrate's Court work injury award for want of jurisdiction, in the litigation following the Supreme Court's upholding of the constitutionality of the Work Injury Benefits Act, 2008. The ELRC had earlier refused the applicant's bid to reopen its decision based on the Chief Justice's Practice Directions of 28th April 2023, holding they did not operate retrospectively. The applicant filed the extension application on 18th October 2024, about eight months after the ruling, blaming the delay on the court's failure to avail a copy of the ruling until 8th May 2024. The 1st respondent opposed, citing dilatory conduct including a nine-month delay in serving the application. M'Inoti JA restated the rule 4 principles from Salat, Mutiso, Fakir Mohamed and Imperial Bank, and found the delay inordinate and unexplained: the ruling was delivered online, the first request for a copy came two months late, a notice of appeal does not require the ruling, and there remained unexplained gaps of five months after receipt of the ruling. On prospects, the judge held that practice directions, like legislation, cannot operate retrospectively absent express provision, following the Supreme Court in Samuel Kamau Macharia, and held the access-to-justice argument unavailable as it was never raised below. The motion was dismissed with costs to the 1st respondent. The ruling binds lower courts on the rule 4 discretion, the non-retrospectivity of practice directions, and the irrelevance of obtaining a ruling before lodging a notice of appeal.

Key legal issues

#
01

Test for extension of time under rule 4 of the Court of Appeal Rules

Holding

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

Reasoning

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.

p. 2
02

Whether the delay was excused by the applicant's wait for a copy of the ruling

Holding

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

Reasoning

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.

p. 3
03

Retrospective operation of the Chief Justice's Practice Directions of 28th April 2023

Holding

Practice directions, like legislation, cannot operate retrospectively unless expressly stated, so they could not revive jurisdiction over a decision made before their promulgation

Reasoning

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.

p. 3
04

Whether the alleged violation of the right to access justice and fair hearing could be raised on appeal

Holding

No, because the issue was never raised before, considered or determined by the ELRC

Reasoning

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.

p. 3

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. 1.Dismissal of the notice of motion dated 18th October 2024
  2. 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.