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Court of AppealDismissedNotice of Motion dated 23rd March 2025 (arising from ELRCC No. E645 of 2022)· [2026] KECA 443 (KLR)

Bishar Adan Mohamed v Judicial Service Commission

Court of Appeal
6 March 2026
950 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed a request for more time to serve an appeal notice because the lawyer only vaguely blamed oversight without explaining the delay.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal at Nairobi, delivered by Jamila Mohammed, JA, on an application under Rule 4 of the Court of Appeal Rules, 2022, seeking extension of time to serve a Notice of Appeal. The underlying ruling of the Employment and Labour Relations Court in ELRCC No. E645 of 2022, delivered by Anna Ngibuini Mwaure, J. on 24th January 2025, dismissed the applicant's application for review. A Notice of Appeal was lodged on 6th February 2025 but, through counsel's asserted inadvertence, was never served. Under Rule 79(1) and (2), service was due within seven days, i.e. by 13th February 2025; the application was filed on 23rd March 2025. The court restated the settled Rule 4 principles from Leo Sila Mutiso, Mwangi v Kenya Airways, Fakir Mohamed, Imperial Bank and Salat, including that extension of time is an equitable remedy, not a right. While the draft memorandum of appeal disclosed at least one arguable issue and the unopposed application revealed no specific prejudice to the respondent, the court held that counsel's bare assertion of inadvertence, unsupported by detail or evidence of steps taken to ensure compliance, was not a satisfactory explanation for the delay. The absence of opposition did not relieve the applicant of the burden of justifying the extension. The application was dismissed with no order as to costs, the decision below being undisturbed as this was an interlocutory application and not the appeal itself.

Key legal issues

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01

Principles governing extension of time under Rule 4

Holding

The matters to be considered include the length of delay, the reason for the delay, possibly the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Reasoning

The court restated the settled Rule 4 jurisprudence: the discretion is wide but unfettered only in the sense that it must be exercised judicially upon sound reason. An applicant must place sufficient material before the court justifying the extension; extension of time is an equitable remedy, not a right.

p. 2
02

Service timeline under Rule 79(1) and (2)

Holding

A Notice of Appeal must be served within seven days of lodging; failure to serve within that period requires extension of time.

Reasoning

The notice was lodged on 6th February 2025 and ought to have been served by 13th February 2025. The application filed on 23rd March 2025 was therefore well out of time, and the delay of over a month required a satisfactory explanation which was not provided.

p. 2
03

Adequacy of the explanation for delay

Holding

Counsel's belief that service had been effected, unsupported by detail on how the misunderstanding arose or steps taken to ensure compliance, was not a satisfactory explanation.

Reasoning

Although arguable issues were disclosed in the draft memorandum and no specific prejudice to the respondent was shown, the absence of a satisfactory explanation remained a significant factor against the applicant, who failed to discharge the burden of justifying the extension.

p. 2

Legal principles established

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  • A bare assertion of inadvertence or oversight, without more, does not constitute a satisfactory explanation for failure to comply with mandatory procedural timelines for serving a Notice of Appeal.
  • The absence of opposition to a Rule 4 application does not relieve the applicant of the obligation to satisfy the Court that a proper basis exists for the exercise of discretion.

Court orders

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  1. 1.The Notice of Motion dated 23rd March 2025 is dismissed
  2. 2.No order as to costs
On appeal from
Employment and Labour Relations Court
ELRCC No. E645 of 2022
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bishar Adan Mohamed v Judicial Service Commission", Case Analysis (2026). Notice of Motion dated 23rd March 2025 (arising from ELRCC No. E645 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/443/eng@2026-03-06

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