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ELRCDismissedMCELRC/E0207/2023 (intended appeal)· [2025] KEELRC 2193 (KLR)

Westpalm Logistics Limited v Gwaro (Miscellaneous Case E050 of 2025) [2025] KEELRC 2193 (KLR)

Employment and Labour Relations Court of Kenya
24 July 2025
JGJacob Gakeri
1,796 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Employment Court in Kisumu refused to extend time for a late appeal, ruling that slow court registries don't excuse missing filing deadlines.

What this practically means

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Executive summary

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This ruling by Dr. Jacob Gakeri, Judge of the Employment and Labour Relations Court at Kisumu, determined a Notice of Motion dated 1st July 2025 by an applicant company (through its sole director, Ceaser Argwings Kodhek) seeking leave to file an appeal out of time against the judgment of Hon. Dennis Matutu delivered on 29th April 2025 in MCELRC/E0207/2023, in which Kshs.280,000 was awarded against the applicant, together with dispensation of the Record of Appeal and stay of execution pending appeal. The applicant attributed the delay to non-availability of certified typed proceedings, while the respondent (Maurice Carlos Ouma Advocate) maintained that such unavailability cannot excuse failure to file an appeal in time and that the application was an abuse of process. The court framed a single issue: whether the application was merited. It held that extension of time is a discretionary exercise governed by settled principles (Leo Sila Mutiso, Nicholas Kiptoo Korir Salat), and applying the two-limb test from Mativo JA in Njorogo v Kimani, found the two-month delay unexplained: the applicant requested typed proceedings only two days before the expiry of the thirty-day period, and the registry backlog cannot be the sole reason for failing to lodge a Memorandum of Appeal in time. Having failed the first limb, arguability did not arise. The stay of execution prayer consequently failed as well. The motion was dismissed with each party bearing their own costs, delivered virtually at Kisumu on 24th July 2025.

Key legal issues

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01

Whether extension of time to file an appeal out of time should be granted

Holding

Refused - the applicant failed to satisfactorily explain the two-month delay; some degree of inaction was discernible as proceedings were requested two days before expiry of the 30-day period

Reasoning

Extension of time involves exercise of judicial discretion guided by settled principles in Leo Sila Mutiso and Nicholas Kiptoo Korir Salat: the delay must be explained to the court's satisfaction, the application must be filed without unreasonable delay, and the respondent must not be prejudiced. Following Mativo JA in Njorogo v Kimani, both a satisfactory justification and arguability must be shown; failure on the first disposes of the application.

p. 4
02

Whether stay of execution pending the intended appeal should be granted

Holding

Refused, as it was dependent on the grant of extension of time which failed

Reasoning

Since the application for extension of time was dismissed, the consequential prayer for stay of execution pending the hearing and determination of the intended appeal could not stand and was equally unavailable.

p. 4

Legal principles established

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  • An applicant for extension of time must show both good and substantial reasons for the delay and prima facie arguable grounds of appeal; both must be satisfied
  • Unavailability of typed and certified proceedings cannot be relied upon as the sole reason for failure to file a Memorandum of Appeal within the prescribed period

Court orders

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  1. 1.The Notice of Motion dated 1st July, 2025 is dismissed
  2. 2.Parties shall bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 50, 159(2)(d), 48
  • Employment ActSections 89, 90
  • Civil Procedure ActSections 1A, 1B, 3A, 79G
  • Civil Procedure Rules, 2010Order 42 Rules 6 and 7; Order 43 Rule 2; Order 51 Rules 1 and 3; Order 21 Rule 1
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rules 8 and 18

Cases cited (12)

  • Leo Sila Mutiso V Hellen Wangari Mwangi
    [1999] 2EA 231
  • Nicholas Kiptoo Korir Salat V I.E.B.C & 7 Others
    [2015] eKLR
  • Mining Co. Ltd V Archdiocese of Nairobi Registered Trustee
    Civil App. No. 190 of 2019
  • Fakir Mohammed V Joseph Mugambi & 2 Others
    [2005] eKLR
  • Andrew Kiplagat Chemongor V Paul Kipkorir Kibet
    [2015] eKLR
  • Omar Shurie V Mariam Rashe Yatar
    Civil Application No. 107 of 2020
  • Njorogo V Kimani
    [2022] KECA 1118 (KLR)
  • M/s Portreiz Maternity V James Karanga Kabia
    Civil Appeal No. 63 of 1997
  • Delmonte kenya Ltd V Patrick Njuguna Kariuki
    [2015] eKLR
  • Solewo Savings & Credit Co-operative Society Ltd V Mwamburi
    Civil Application No.032 of 2022 [2023] KECA 38 KLR
  • Muchongi Kiragu V James Muchongi Kiragu
    [1998] eKLR
  • Ngei V Kibe & Antoher
    Civil Application No. R359 of 2021
On appeal from
Magistrates Court (ELRC - MCELRC/E0207/2023)
MCELRC/E0207/2023
Jurisdiction invoked
Articles 50 and 159(2)(d) of the Constitution; Sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Rule 18 of the Employment and Labour Relations Court (Procedure) Rules, 2024

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, "Westpalm Logistics Limited v Gwaro (Miscellaneous Case E050 of 2025) [2025] KEELRC 2193 (KLR)", Case Analysis (2025). MCELRC/E0207/2023 (intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2193/eng@2025-07-24

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