Keroche Breweries Ltd v Shollei (Civil Application E020 of 2023) [2026] KECA 1082 (KLR)
The bottom line
#Kenya's Court of Appeal refused to revive Keroche Breweries' stay application, ruling that blaming your lawyer doesn't excuse a two-year delay in acting.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has shown sufficient cause to warrant extension of time to file an application for reinstatement of its dismissed application for stay of execution
- 2.Whether an advocate's failure to attend court constitutes sufficient cause for restoration under Rule 58 of the Court of Appeal Rules, 2022
- 3.Whether the delay of over two years in moving the court has been satisfactorily explained
Key legal issues
#Whether advocate negligence constitutes sufficient cause under Rule 58
Advocate error does not automatically amount to sufficient cause; only a bona fide mistake made despite reasonable care may excuse non-attendance, and courts must guard against litigants using counsel-hopping to stall execution.
The court drew on Indian Supreme Court authority (Lala Mata Din; Salil Dutta) and Murai vs Wainaina (No. 3) to hold that an advocate's acts and omissions within the scope of authority are those of the client. The maxim that mistakes of counsel should not be visited on a client protects only diligent, good-faith litigants, not those who passively watch deadlines lapse or engage in systemic lack of vigilance.
Whether the two-year delay was satisfactorily explained
The delay of over two years in seeking reinstatement was inordinate and unexplained and disentitled the applicant from the discretionary relief of extension of time.
Applying the Salat factors, the court found the applicant bore the burden of explaining the delay, that extension is an equitable remedy available only to deserving parties, and that the respondent's accrued right following the dismissal should not be lightly disturbed. No reasonable explanation was offered for the more than eleven months (ultimately over two years) of inaction.
Legal principles established
#- Under Rule 58 of the Court of Appeal Rules, 2022, restoration of an application dismissed for non-attendance requires sufficient cause and must be filed within 30 days of the dismissal; where filed out of time, the applicant must explain both the non-attendance and the delay.
- There is no absolute rule that a mistake of counsel automatically constitutes sufficient cause for extension of time; the mistake must be bona fide and the litigant bears an independent duty of vigilance over its own proceedings.
- A litigant cannot completely disown its advocate's inaction; a case belongs to the litigant, who must remain vigilant about pending proceedings.
Court orders
#- 1.Dismissal of the applicant's application dated 20th April 2026
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court, Nakuru
- Cause No. 35 of 2019
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022 and sections 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Extension of time to file an application for reinstatement of the application dated 8th March 2023 dismissed for non-attendance on 19th June 2023
The delay of over two years was inordinate and unexplained; a mistake of counsel is not automatically sufficient cause
Costs
Since the respondent did not file submissions, I make no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, I find no merit in the applicant's application. The upshot of this is that, I hereby dismiss the applicant's application dated 20th April 2026.
Since the respondent did not file submissions, I make no order as to costs.
Extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
there is no absolute rule that a mistake of counsel automatically constitutes "suficient cause" to grant an extension of time or to constitute a suficient reason for failure to attend court.
Issues in the judgment
#The judgment does not name the respondent in the application, and the underlying appeal number before the Court of Appeal is not stated; the case number recorded is that of the ELRC cause from which the appeal arises.
The judgment states the reinstatement application dated 24th July 2025 was filed 'well over 11 months after the earlier application had been dismissed', yet elsewhere describes a delay of over two years, suggesting the 24th July 2025 date may be an internal inconsistency.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keroche Breweries Ltd v Shollei (Civil Application E020 of 2023) [2026] KECA 1082 (KLR)", Case Analysis (2026). Nakuru Employment and Labour Relations Court Cause No. 35 of 2019 (appeal-related application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1082/eng@2026-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.