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ELRCDismissedNotice of Motion dated 21st January, 2025 (arising from Milimani CMELRC NO. E1376 of 2022)

Imbuga v Winguard Services Limited (Miscellaneous Application E014 of 2025) [2025] KEELRC 3718 (KLR)

Employment & Labour Relations Court
19 December 2025
1,589 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused an advocate's late appeal because he gave no credible reason for missing the judgment and the employee had already been paid.

What this practically means

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Executive summary

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This was a Notice of Motion dated 21st January 2025 brought under Section 12 of the Employment & Labour Relations Court Act and Rules 47, 49 and 68 of the ELRC Rules, in which the Applicant sought leave to file an appeal out of time against the judgment and decree in Milimani CMELRC NO. E1376 of 2022 delivered by Hon. Wangari Mbulikah on 4th November 2024. The Applicant, through his advocate Willis Wetaba, argued that judgment was delivered in the advocate's absence due to unavoidable circumstances, that the judgment was only published on the CTS on 16th January 2025, and that the draft memorandum of appeal raised triable issues. The Respondent, through Kathambi Rwito, opposed the application, contending that the Applicant took no steps to obtain the judgment between delivery and its upload, that equity aids the vigilant, and that the decretal sum of Ksh.85,623.75 had already been paid by two cheques of Ksh.42,500 each, settling the matter. Applying Rule 18 of the ELRC (Procedure) Rules, 2024 and the Supreme Court's principles in Nicholas Kiptoo Korir Arap Salat v IEBC, the court held that extension of time is an equitable remedy available only to a deserving party, and that the Applicant bore the burden of explaining the delay. It found no plausible explanation for the advocate's absence at judgment or the failure to request a copy of the judgment, and accepted that the judgment sum had been settled without objection. The application was dismissed with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant should be granted leave to file an appeal out of time against the judgment and decree in Milimani CMELRC NO. E1376 of 2022 delivered on 4th November, 2024
  2. 2.Whether a plausible/reasonable explanation for the delay in filing the appeal within 30 days was given
  3. 3.Whether the Respondent would suffer prejudice if the extension is granted, given that the judgment sum has been settled

Key legal issues

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01

Whether there was a reasonable explanation for the delay in filing the appeal within 30 days of the judgment

Holding

The Applicant failed to discharge the burden of explaining the delay; the 'unavoidable circumstances' were not particularised and no effort to obtain the judgment from the lower court was demonstrated

Reasoning

The Applicant's advocate knew the judgment date but did not attend court. The circumstances said to be 'unavoidable' were never adduced so the court could discern their impact. No request for a copy of the judgment was made between delivery on 4th November 2024 and its upload on 16th January 2025. Equity aids the vigilant, not the indolent.

p. 3
02

Whether settlement of the decretal sum and prejudice to the Respondent bore on the discretion

Holding

The judgment sum had been paid by two cheque deposits and the Applicant raised no objection, supporting the view that the matter stood settled and extension would prejudice the Claimant

Reasoning

The Respondent averred the judgment sum of Ksh.85,623.75 was paid via two cheques of Ksh.42,500 each received by the Claimant's counsel on 18th December 2024. The Applicant raised no objection to this allegation, and the court accepted it as fact pointing against enlargement of time.

p. 3
03

Whether arguability of the intended appeal could save the application

Holding

No; grounds for extension of time must be established before arguing the merits of a potentially meritorious appeal

Reasoning

The court held that the duty was to establish grounds for extension of time before arguing for a meritorious appeal. Even weighed against Article 50 and Article 159(2) of the Constitution, the court found no basis to pardon the Applicant since no plausible reason for the delay was demonstrated.

p. 4

Legal principles established

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  • Extension of time is not a right of any party; it is an equitable remedy available to a deserving party at the discretion of the court, and the applicant bears the burden of laying a basis for it
  • Delay, short or long, must be explained; an applicant seeking extension of time must first establish grounds for the delay before arguing the merits of the intended appeal
  • An intended appeal ought to have already been filed before or together with an application seeking leave to extend time

Court orders

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  1. 1.The Notice of Motion Application dated 21st January 2025 is dismissed
  2. 2.Each party to bear their own costs of the Application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Section 12 of the Employment & Labour Relations Court Act and Rules 47, 49 and 68 of the Employment & Labour Relations Court Rules; Rule 18 of the ELRC (Procedure) Rules, 2024

Relief refused

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Leave to file an appeal out of time against the judgment in Milimani CMELRC NO. E1376 of 2022

No plausible reason demonstrated for the delay; the Applicant failed to explain the advocate's absence at judgment and the failure to request a copy of the judgment, and the judgment sum had already been settled

p. 4

Costs

Each party to bear their own costs of the Application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a. The Notice of Motion Application dated 21st January 2025 is devoid of merit and is dismissed. b. As the Claimant desired that the matter remains as settled, each party to bear their own costs of the Application.
p. 4Final orders - dismissal and costs
Therefore, to this court, delay, short or long has to be explained. The Applicant had the duty to explain the delay.
p. 4Burden to explain delay
Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
p. 3Nature of extension of time
Even in the interest of justice coupled with the right to be heard under Article 50 of the Constitution and the same to be heard without undue regard to technicalities under Article 159(2) of the Constitution, this court finds no basis to pardon the Applicant.
p. 4Article 50 and Article 159(2) do not cure unexplained delay

Issues in the judgment

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minor

The judgment is dated 19th December 2025 while the application was filed on 21st January 2025 and the reply on 26th February 2025; the year on the delivery date may be a typographical error for 2024 or the file simply took time, but as printed the date postdates the pleadings by nearly a year

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, "Imbuga v Winguard Services Limited (Miscellaneous Application E014 of 2025) [2025] KEELRC 3718 (KLR)", Case Analysis (2025). Notice of Motion dated 21st January, 2025 (arising from Milimani CMELRC NO. E1376 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3718/eng@2025-12-19

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