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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNotice of Motion dated 28th August 2025 (Court of Appeal, Kisumu)· [2026] KECA 715 (KLR)

Kisii County Assembly Board & 1 other v Samuel Kerosi Ondieki & 1 other

Court of Appeal of Kenya
31 March 2026
1,065 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 gave the Kisii County Assembly Service Board more time to appeal, accepting that ongoing court battles explained the delay.

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 Kisumu by H. A. Omondi, JA, on a Notice of Motion dated 28th August 2025 seeking extension of time to lodge and serve a notice of appeal, and deemed filing of the record of appeal, against an Employment and Labour Relations Court judgment delivered on 15th February 2023. In that judgment the ELRC awarded the respondent (a claimant against the Kisii County Assembly Service Board) travel reimbursement of Kshs.109,082, non-practising allowance of Kshs.540,000, and directed computation and payment of 31% gratuity on his last basic salary, dismissing the other claims with costs on a half scale. The applicants attributed the delay to the respondent's successive applications - judicial review proceedings, a review application, and a contempt application - which kept them responding until mid-2025. The respondent's replying papers were, unfortunately, directed to a stay-of-execution application and did not engage the motion. Applying Rule 4 of the Court of Appeal Rules and the principles in Leo Sila Mutiso, Muringa Company Ltd, and Andrew Kiplagat Chemaringo, the court held that the delay was not inordinate, the explanation was plausible, and no prejudice would be suffered since the respondent would still have his day in court on appeal. The application was allowed: extension of time to lodge and serve the notice of appeal within fourteen days, with no orders as to costs. This interlocutory ruling does not disturb the ELRC decision; the appeal remains to be argued.

Key legal issues

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01

Whether the delay in lodging the notice of appeal should be excused under Rule 4 of the Court of Appeal Rules

Holding

Yes. The delay was not inordinate; the reason - that the respondent kept the applicants engaged with successive applications (judicial review, review, and contempt proceedings) - was plausible, and no prejudice would be occasioned to the respondent.

Reasoning

Rule 4 gives an unfettered discretion to extend time, guided by principles from Leo Sila Mutiso and Muringa Company. The court found counsel was kept 'on a long leash' defending successive applications filed by the respondent between September 2024 and June 2025, so the delay was not deliberate delaying tactics. There is no statutory maximum period of delay; the requirement is a reasonable and plausible explanation, which was met, and the respondent would still have his day in court on appeal.

p. 3
02

Compliance with Rule 77 of the Court of Appeal Rules on lodging and serving the notice of appeal

Holding

The mandatory timeline - notice of appeal within 14 days of the decision and service within 7 days of lodging - was not complied with, hence the need to invoke the Rule 4 discretion.

Reasoning

Rule 77 requires an intended appellant to lodge the notice of appeal before or within fourteen days of the decision and serve it within seven days of lodging. The court recorded that this did not happen, but accepted the explanation that the failure was due to the respondent's successive applications rather than ignorance of the outcome.

p. 2

Legal principles established

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  • The law prescribes no minimum or maximum period of delay for extension of time; what is required is a satisfactory and plausible explanation for the delay.
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretionary favour under Rule 4.
  • Rule 4 confers an unfettered discretion to extend time, exercised to achieve a just decision in the circumstances of each case.

Court orders

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  1. 1.Extension of time granted to the applicant to lodge and serve the notice of appeal
  2. 2.Notice of appeal and record to be filed and served within fourteen (14) days of the date of the ruling
  3. 3.No orders as to costs
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

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, "Kisii County Assembly Board & 1 other v Samuel Kerosi Ondieki & 1 other", Case Analysis (2026). Notice of Motion dated 28th August 2025 (Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/715/eng@2026-03-31

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