Fracht Kenya Limited v Kaloki (Civil Application E070 of 2025) [2026] KECA 719 (KLR)
The bottom line
#The Court of Appeal refused to allow a late appeal after more than 20 months of unexplained delay, confirming that unexplained delays can end appeal rights in Kenya.
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 had laid a basis to the satisfaction of the Court for enlargement of time and leave to file a notice of appeal, record of appeal and memorandum of appeal out of time
- 2.Whether the delay of over 20 months was inordinate and satisfactorily explained
- 3.Whether any prejudice to the respondent or the chances of success of the intended appeal need be considered where the delay is inordinate and unexplained
Key legal issues
#Burden on an applicant for extension of time
An applicant for extension of time bears the burden of laying a basis to the satisfaction of the Court, explaining the delay to its satisfaction.
The Court restated the factors from Leo Sila Mutiso and Nicholas Kiptoo Arap Korir Salat: reason for the delay explained to the Court's satisfaction, prejudice to the respondent, whether the application is brought without undue delay, and public interest. On the facts, the applicant filed no notice of appeal in time or at all, offered an undated and apparently unpaid notice of appeal, and the deponent's status was unknown; the averments about obtaining proceedings and a change of counsel were unsupported by material. The delay exceeded 20 months and was unexplained.
Consequence of inordinate unexplained delay
Where the delay is inordinate and unexplained, the Court need not consider the merits of the intended appeal or the prejudice to the respondent.
Having found inordinate delay of more than 20 months without satisfactory explanation, the Court held the remaining Salat factors need not be reached. The application was therefore dismissed without an assessment of the arguability of the intended appeal.
Legal principles established
#- Where there is inordinate unexplained delay in an application for extension of time, the Court need not consider the chances of success of the intended appeal or the prejudice to the respondent.
Court orders
#- 1.The notice of motion dated 7th February 2025 seeking extension of time and leave to appeal out of time is dismissed
- 2.No orders as to costs, since the respondent did not file any document in response to the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court, Nairobi
- ELRC Cause No. E043 of 2022
- Jurisdiction invoked
- Inherent discretion of the Court of Appeal to enlarge time and grant leave to appeal (the judgment does not cite the specific provision)
Relief refused
#Enlargement of time and leave to file a notice of appeal, record of appeal and memorandum of appeal out of time
Inordinate delay of more than 20 months with no satisfactory explanation; failure to discharge the burden of laying a basis for the orders sought; deponent's capacity unexplained
Costs
No orders as to costs, since the respondent did not file any document in response to the application.
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.
Where there is inordinate delay in bringing an application for extension of time, and where there is no satisfactory explanation for such delay, the Court need not consider the chances of success of the intended appeal and the degree of prejudice that would be occasioned to the respondent if the application for extension of time is not granted.
Consequently, I dismiss this application and make no orders as to costs, since the respondent did not file any document in response to the application.
Issues in the judgment
#Internal date inconsistency: the hearing notice is dated 2nd March 2026 while submissions were filed on 24th February 2025 and the application dated 7th February 2025; the 2026 notice postdates the 2025 submissions by roughly a year, which may be a typographical error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fracht Kenya Limited v Kaloki (Civil Application E070 of 2025) [2026] KECA 719 (KLR)", Case Analysis (2026). Nairobi Civil Application (unnumbered on the face of the judgment; arises from ELRC Cause No. E043 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/719/eng@2026-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.