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ELRCPartially AllowedNot stated in judgment (amended Notice of Motion dated 29th April 2025)· [2025] KEELRC 2248 (KLR)
Mairura v Mesora Distributors Limited (Miscellaneous Application E099 of 2025) [2025] KEELRC 2248 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Applicant, Boaz Ombati Mairura, moved the Employment and Labour Relations Court by an amended Notice of Motion seeking leave to file an appeal out of time against a judgment of Hon. Tom Mark Orlando PM delivered on 19th February 2025 in Milimani Chief Magistrates Court Employment Case Number E1090 of 2022, which awarded him Kshs. 16,858.00 being one month's salary in lieu of notice and costs. He attributed the delay in filing the Memorandum of Appeal to his counsel's inadvertent failure to inform him of the decision in time, urged that a mistake of counsel should not be visited on an innocent litigant, and contended the delay was not inordinate. The Respondent opposed through Grounds of Opposition, arguing that the alleged mistake was unsubstantiated, that no counsel's affidavit confirmed it, that extension of time is not a right, and that it would be prejudiced by prolonged litigation. The Court identified a single issue: whether leave to appeal out of time should be granted. Relying on Sections 79G and 95 of the Civil Procedure Act and Rule 80 of the ELRC (Procedure) Rules, 2024, and applying the Salat principles on extension of time, the Court found the approximately 39-day delay not inordinate. Adopting Philip Chemwolo & Another v Augustine Kubende, it gave the Applicant the benefit of doubt regarding counsel's mistake and granted leave. The Memorandum of Appeal was to be filed and served within fourteen days, with the Applicant bearing the costs of the application.
Key legal issues
#01
Whether leave should be granted to file an appeal out of time
Holding
The application was merited; the delay of approximately 39 days was not inordinate, the Applicant explained the delay by attributing it to counsel's mistake, and the Court extended time
Reasoning
The Court exercised its discretion under Section 79G and Section 95 of the Civil Procedure Act and Rule 80 of the ELRC (Procedure) Rules, 2024, guided by the Salat principles. It found the delay of about 39 days not inordinate and accepted the explanation that counsel inadvertently failed to inform the Applicant of the decision, giving him the benefit of doubt per Chemwolo v Kubende. No prejudice to the Respondent displaced this conclusion.
p. 3
Legal principles established
#- Extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the Court, guided by the principles in Salat v IEBC
- A mistake or blunder by counsel should not result in a party suffering the penalty of not having his case heard on merit
Court orders
#- 1.Leave granted to the Applicant to file an appeal out of time against the Judgment delivered on 19th February 2025 in MCELRC No. E1090 of 2022 – Boaz Ombati Mairura v Mesora Distributors Limited by Hon. Tom Mark Orlando
- 2.Applicant to file and serve the Memorandum of Appeal within fourteen (14) days from the date of delivery of the Ruling
- 3.Applicant to bear the costs of the Application
- On appeal from
- Milimani Chief Magistrates Court (Employment Case)
- E1090 of 2022 – Boaz Ombati Mairura v Mesora Distributors Limited
- Jurisdiction invoked
- Section 79G and Section 95 of the Civil Procedure Act; Rule 80 of the Employment and Labour Relations Court (Procedure) Rules, 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mairura v Mesora Distributors Limited (Miscellaneous Application E099 of 2025) [2025] KEELRC 2248 (KLR)", Case Analysis (2025). Not stated in judgment (amended Notice of Motion dated 29th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2248/eng@2025-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.