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ELRCAllowedNotice of Motion dated 12th May, 2025 (arising from MCELRC No. E155 of 2024)· [2025] KEELRC 2064 (KLR)

Okomba v Bachulal Popatlal Ltd (Miscellaneous Case E046 of 2025) [2025] KEELRC 2064 (KLR)

Employment and Labour Relations Court
14 July 2025
2,013 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court allowed an unemployed worker to appeal three months late, accepting financial hardship as a valid reason for the delay.

What this practically means

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Executive summary

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This was a ruling on the Applicant's Notice of Motion dated 12th May 2025 seeking leave to file an appeal out of time against a judgment delivered on 22nd January 2025 by Hon. Dickson Onyango, CM, in MCELRC No. E155 of 2024, where her claim against Bachulal Popatlal Ltd was dismissed. The application was brought under Order 51 Rule 1 of the Civil Procedure Rules, Section 79 of the Civil Procedure Act and Rule 18 of the ELRC (Procedure) Rules, 2024. The applicant attributed the delay of about three months to financial constraints, being unemployed and the sole breadwinner, and deponed that she had sought counsel's advice on fees and was ready to lodge the appeal. The respondent opposed, arguing that financial hardship without documentary proof was not sufficient cause, that an appeal could be lodged as a pauper, and that the application was an abuse of process. Framing a single issue - whether the motion was merited - the court invoked Rule 18 of the ELRC (Procedure) Rules, Sections 79G and 95 of the Civil Procedure Act, and the established discretion factors: length of delay, reason for delay, arguability, and prejudice. It found the three-month delay neither prolonged nor inordinate, accepted the financial explanation as plausible given the cost of legal services, held the appeal arguable on overtime, leave days, house allowance and Section 90 of the Employment Act, and noted no particular prejudice was pleaded. The application was allowed with timelines for filing and the record of appeal; costs were made to abide the appeal's outcome.

Key legal issues

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01

Whether the delay of about three months in filing the appeal was prolonged or inordinate

Holding

The delay of three months was neither prolonged nor inordinate.

Reasoning

The judgment was delivered on 22nd January 2025 and the application filed on 20th May 2025, a delay of about three months. Guided by the Court of Appeal in Omar Shurie, the court found the period short enough to fall within its discretionary favour, provided the reason was plausible.

p. 4
02

Whether the applicant's financial constraints constituted a plausible reason for the delay

Holding

The explanation of financial inability to raise filing fees was plausible.

Reasoning

The applicant deposed she was unemployed, the sole breadwinner, and could not raise legal fees on time. Though she provided no documentary evidence of her financial position, the court took judicial notice that legal services are expensive and unemployed persons may struggle to access justice.

p. 4
03

Whether the intended appeal was arguable

Holding

The appeal raising overtime, leave days, house allowance and Section 90 of the Employment Act issues was arguable.

Reasoning

The applicant challenged the dismissal of claims for overtime, leave days and house allowance and the trial court's application of Section 90 of the Employment Act. Arguability requires only a non-frivolous issue requiring further consideration, not a probability of success.

p. 4
04

Whether the respondent would suffer prejudice if leave were granted

Holding

No particular prejudice was pleaded or demonstrated by the respondent.

Reasoning

The respondent did not plead that the three-month delay had prejudiced it or would prejudice it in any particular manner if leave was granted; any prejudice could be compensated in costs.

p. 4

Legal principles established

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  • Extension of time is a discretionary, equitable remedy available only to a deserving party and must be exercised judiciously.
  • Financial hardship may constitute a plausible and sufficient explanation for delay where the delay is neither prolonged nor inordinate.
  • Arguability of an appeal does not require prospects of success, only that the appeal is not frivolous.

Court orders

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  1. 1.The applicant shall file and serve the Memorandum of Appeal within 7 days
  2. 2.The applicant to request for typed and certified copies of the proceedings and judgment in MCELRC No. E155 of 2024 and file and serve the Record of Appeal within sixty days
  3. 3.Mention on 18th September, 2025 to confirm compliance
  4. 4.Costs shall abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Civil Procedure ActSection 79
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 1B
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 18
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 12(2)
  • Employment ActSection 90
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (18)

  • Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Gerald M'Limbine V Joseph Kangangi
    [200] eKLR
  • Stantely Kahoro Mwangi & 2 Others V Kanyamwi Tranding Co. Ltd
    [2015] eKLR
  • Joseph Odide Walome V David Mbadi Akello
    [2022] Eklr
  • Leo Sila Mutiso V Rose Hellen Wangari Mwangi
    Civil Application No. 255 of 1997 (unreported)
  • Nicholas Kiptoo Korir Arap Salat V I.E.B.C & 7 others
    [2015] eKLR
  • Muringa Co. Ltd V Archdiocese of Nairobi Registered Trustees
    Civil Application No. 190 of 2019
  • Fakir Mohammed V Joseph Mugambi & 2 others
    [205] eKLR
  • First American Bank of Kenya Ltd V Gulab P Shah & 2 Others
    [2002] eKLR
  • Thuita Mwangi V Kenya airways Ltd
    [2003] eKLR
  • Njoroge V Kimani
    [2022] KECA 1188 (KLR)
  • National Union of Mineworkers V Council for Mineral Technology
    [1998] 2 ALAC 22
  • Adrew Kariuki Njoroge V John Paul Maina
  • Andrew Kiplagat Chemaringo V Paul Kipkorir Kibet
    [2018] KLR
  • Omar Shurie V Marian Rashe Yatar
    Civil Application No. 107 of 2020
  • Stanley Kang'ethe Kinyanjui V Tony Keter & 5 others
    [2013] eKLR
  • Commissioner of Customs V Anil Doshi
    [2017] eKLR
  • Jospeh Gitahi Gachau & another V Pioneer Holdings (A) Ltd & 2 others
    Civil Application No. 124 of 2008
On appeal from
Magistrates' Court (ELRC)
MCELRC No. E155 of 2024
Jurisdiction invoked
Rule 18 of the Employment and Labour Relations Court (Procedure) Rules, 2024; Section 79G and Section 95 of the Civil Procedure Act

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, "Okomba v Bachulal Popatlal Ltd (Miscellaneous Case E046 of 2025) [2025] KEELRC 2064 (KLR)", Case Analysis (2025). Notice of Motion dated 12th May, 2025 (arising from MCELRC No. E155 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2064/eng@2025-07-14

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