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ELRCAllowedNyeri ELRCA No. E032 of 2024 (Motion dated 7th February 2025)

Simiyu v Protective Custody Limited (Employment and Labour Relations Miscellaneous E002 of 2025) [2025] KEELRC 1497 (KLR)

Employment and Labour Relations Court
16 May 2025
OMONESMUS N MAKAU
1,923 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court gave a worker extra time to appeal after his lawyer's honest mistake caused a short delay, shielding the client from the error.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nyeri (Onesmus N Makau J) on the applicant's Notice of Motion dated 7th February 2025 seeking leave to appeal out of time against the judgment of Hon. Lubia N. Mercyline (SRM) in Nyeri CMELRC Cause No. E031 of 2023 delivered on 5th September 2024. The applicant explained that counsel promptly requested certified copies of proceedings and judgment four days after judgment, filed an appeal on 28th October 2024 (24 days late) because counsel mistakenly missed the timeline for the memorandum of appeal, and upon discovering the error withdrew the defective appeal and filed the present motion. The respondent opposed, arguing the application was an abuse of process, an afterthought filed five months after judgment, and that no plausible reason for the delay was given. The court framed a single issue: whether the applicant met the legal threshold for extension of time. Applying the Supreme Court's Salat principles and the Court of Appeal's guidance in Edith Gichugu Koine and Njoroge v Kimani, the judge found the application was brought without undue delay, the delay was attributable to an honest mistake by counsel and delay in obtaining certified proceedings, and the respondent would suffer no prejudice compensable only by costs. The court declined to visit counsel's mistake on the innocent client and allowed the application, directing that the appeal be filed within 30 days and that the applicant pay the respondent throw-away costs of Kshs 10,000 within 45 days.

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 met the legal threshold for extension of time for filing an appeal

Key legal issues

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01

Whether the delay of 24 days in filing the memorandum of appeal was excusable and whether extension of time should be granted.

Holding

Yes; the delay was due to an honest mistake by counsel plus delay in obtaining certified proceedings, and the mistake of counsel is not visited on the innocent client.

Reasoning

The court applied the Salat principles: reasonable reason for delay, absence of undue delay in bringing the application, and absence of prejudice. Counsel requested proceedings four days after judgment, filed the record of appeal within time, admitted his mistake about the memorandum timelines, withdrew the defective appeal and moved promptly. The explanation was found reasonable and the respondent showed no prejudice compensable only by costs.

p. 4

Legal principles established

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  • The discretion to extend time is unfettered but the applicant must explain the reasons for delay and any extenuating circumstances.
  • A party seeking extension of time must show a reasonable reason for the delay, no undue delay in filing, and no prejudice to the respondent.

Court orders

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  1. 1.The appeal shall be filed within 30 days of this ruling.
  2. 2.The applicant shall pay the respondent throw-away costs of Kshs 10,000 within 45 days of this ruling.

The bench

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

OM
majority

Wrote the judgment

On appeal from
Magistrate Court (Nyeri CMELRC Cause No. E031 of 2023)
Nyeri CMELRC Cause No. E031 of 2023
Jurisdiction invoked
Rules 18 and 80 of the ELRC Procedure Rules (extension of time for filing appeals)

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.

In view of the reasons highlighted above, I find and hold that the Application has merit and it is allowed on the following terms: i. The appeal shall be filed within 30 days of this ruling. ii. The applicant shall pay the respondent throw-away costs of Kshs 10,000 within 45 days of this ruling.
p. 4final orders granting extension of time
The said explanation is reasonable and I will not visit the counsel’s mistake on his innocent client.
p. 4mistake of counsel not visited on client
Excusable delays are delays that are unforeseeable and beyond the control of the party. Nonexcusable delays are delays that are foreseeable or within the party's control.
p. 4definition of excusable delay

Issues in the judgment

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minor

Paragraph 17 contains a typographical confusion: 'The counsel discovered the mistake of the counsel in December 2024' appears self-referential/garbled.

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, "Simiyu v Protective Custody Limited (Employment and Labour Relations Miscellaneous E002 of 2025) [2025] KEELRC 1497 (KLR)", Case Analysis (2025). Nyeri ELRCA No. E032 of 2024 (Motion dated 7th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1497/eng@2025-05-16

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