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Court of AppealDismissedNakuru Employment and Labour Relations Court Cause No. 35 of 2019 (appeal-related application)

Keroche Breweries Ltd v Shollei (Civil Application E020 of 2023) [2026] KECA 1082 (KLR)

Court of Appeal of Kenya
3 June 2026
2,203 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to revive Keroche Breweries' stay application, ruling that blaming your lawyer doesn't excuse a two-year delay in acting.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nakuru (Mativo, JA) on Keroche Breweries Ltd's application dated 20th April 2026 seeking extension of time to file an application to reinstate its application dated 8th March 2023 for stay of execution of a decree of Kshs.45,550,051 entered by Wasilwa, J. in Nakuru ELRC Cause No. 35 of 2019 on 27th September 2022. The stay application had been dismissed on 19th June 2023 for non-attendance under Rule 58 of the Court of Appeal Rules, 2022. Rule 58(4) requires a restoration application within thirty days. The applicant did not move within that period; an earlier reinstatement application filed in July 2025 was withdrawn in January 2026, and the present application was filed over two years after the dismissal. The applicant attributed the non-attendance to its former advocates. The court held that there is no absolute rule that a mistake of counsel automatically constitutes sufficient cause; only a bona fide mistake made with reasonable care may suffice, and a case belongs to the litigant, who bears an independent duty of vigilance. Applying the Salat principles on extension of time and authorities including Lala Mata Din, Salil Dutta, Murai vs Wainaina (No. 3) and Ramlal v Rewa Coalfields, the court found the delay inordinate and unexplained and dismissed the application. Because the respondent filed no submissions, the court made no order as to costs. The decision binds subordinate courts and tribunals on the scope of the 'sufficient cause' standard under Rule 58 and the treatment of advocate error in extension-of-time applications.

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 has shown sufficient cause to warrant extension of time to file an application for reinstatement of its dismissed application for stay of execution
  2. 2.Whether an advocate's failure to attend court constitutes sufficient cause for restoration under Rule 58 of the Court of Appeal Rules, 2022
  3. 3.Whether the delay of over two years in moving the court has been satisfactorily explained

Key legal issues

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01

Whether advocate negligence constitutes sufficient cause under Rule 58

Holding

Advocate error does not automatically amount to sufficient cause; only a bona fide mistake made despite reasonable care may excuse non-attendance, and courts must guard against litigants using counsel-hopping to stall execution.

Reasoning

The court drew on Indian Supreme Court authority (Lala Mata Din; Salil Dutta) and Murai vs Wainaina (No. 3) to hold that an advocate's acts and omissions within the scope of authority are those of the client. The maxim that mistakes of counsel should not be visited on a client protects only diligent, good-faith litigants, not those who passively watch deadlines lapse or engage in systemic lack of vigilance.

p. 3
02

Whether the two-year delay was satisfactorily explained

Holding

The delay of over two years in seeking reinstatement was inordinate and unexplained and disentitled the applicant from the discretionary relief of extension of time.

Reasoning

Applying the Salat factors, the court found the applicant bore the burden of explaining the delay, that extension is an equitable remedy available only to deserving parties, and that the respondent's accrued right following the dismissal should not be lightly disturbed. No reasonable explanation was offered for the more than eleven months (ultimately over two years) of inaction.

p. 4

Legal principles established

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  • Under Rule 58 of the Court of Appeal Rules, 2022, restoration of an application dismissed for non-attendance requires sufficient cause and must be filed within 30 days of the dismissal; where filed out of time, the applicant must explain both the non-attendance and the delay.
  • There is no absolute rule that a mistake of counsel automatically constitutes sufficient cause for extension of time; the mistake must be bona fide and the litigant bears an independent duty of vigilance over its own proceedings.
  • A litigant cannot completely disown its advocate's inaction; a case belongs to the litigant, who must remain vigilant about pending proceedings.

Court orders

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  1. 1.Dismissal of the applicant's application dated 20th April 2026
  2. 2.No order as to costs

The bench

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

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court, Nakuru
Cause No. 35 of 2019
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 and sections 3A and 3B of the Appellate Jurisdiction Act

Relief refused

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Extension of time to file an application for reinstatement of the application dated 8th March 2023 dismissed for non-attendance on 19th June 2023

The delay of over two years was inordinate and unexplained; a mistake of counsel is not automatically sufficient cause

p. 4

Costs

Since the respondent did not file submissions, I make no order as to costs.

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.

Accordingly, I find no merit in the applicant's application. The upshot of this is that, I hereby dismiss the applicant's application dated 20th April 2026.
p. 4Final orders - dismissal
Since the respondent did not file submissions, I make no order as to costs.
p. 4Costs
Extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
p. 4Principles governing extension of time (Salat factors)
there is no absolute rule that a mistake of counsel automatically constitutes "suficient cause" to grant an extension of time or to constitute a suficient reason for failure to attend court.
p. 3Mistake of counsel

Issues in the judgment

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minor

The judgment does not name the respondent in the application, and the underlying appeal number before the Court of Appeal is not stated; the case number recorded is that of the ELRC cause from which the appeal arises.

minor

The judgment states the reinstatement application dated 24th July 2025 was filed 'well over 11 months after the earlier application had been dismissed', yet elsewhere describes a delay of over two years, suggesting the 24th July 2025 date may be an internal inconsistency.

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, "Keroche Breweries Ltd v Shollei (Civil Application E020 of 2023) [2026] KECA 1082 (KLR)", Case Analysis (2026). Nakuru Employment and Labour Relations Court Cause No. 35 of 2019 (appeal-related application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1082/eng@2026-06-03

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