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ELRCDismissedMiscellaneous Application No. E019 of 2026

Marvin Omondi Ngei v Migori County Public Service Board

Employment & Labour Relations Court of Kenya
28 September 2026
2,778 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let a public officer appeal late, ruling the 30-day appeal deadline is mandatory and a five-month unexplained delay cannot be excused.

What this practically means

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Executive summary

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The applicant, Marvin Omondi Ngei, moved the ELRC at Kisumu by a notice of motion dated 20th March 2026 seeking leave to appeal out of time against the decision of the Public Service Commission dated 8th October 2025 in County Review No. 010 of 2025, which had partially allowed his review, varied findings on his authority to act for other public officers, and struck out his original appeal. He also sought to have his draft Memorandum of Appeal deemed filed and costs to abide the appeal. He attributed the delay to the PSC's failure to communicate its decision until 17th November 2025, outside the timelines in the PSC (County Appeals Procedures) Regulations, 2022, and relied on Rule 18 of the ELRC Rules, 2024 and the Civil Procedure Act. The respondent, Migori County Public Service Board, opposed, contending that Rule 12(2) of the ELRC (Procedure) Rules prescribes a mandatory 30-day period; that no tangible proof of receipt on 17th November 2025 was produced; and that in any event the applicant did not lodge the intended appeal until 17th April 2026, over five months later - an inordinate, unexplained delay. It also noted the PSC was not a party and could not answer allegations about its conduct. In a brief disposition, the court held that even accepting the applicant's asserted date of receipt, the delay of over five months was inordinate and unexplained; that the word 'shall' in the prescribed timeline denotes a mandatory requirement, not a mere aspiration; and that no basis for extension had been laid. The application was dismissed with no order as to 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 Court has jurisdiction and discretion to enlarge time for filing an appeal out of time
  2. 2.Whether the Applicant has established sufficient cause to warrant extension of time to file the intended appeal out of time
  3. 3.Whether the Applicant has an arguable appeal with reasonable prospects of success
  4. 4.Whether the Respondent shall suffer prejudice if leave is granted

Key legal issues

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01

Whether sufficient cause was shown to enlarge time for filing the intended appeal

Holding

No sufficient cause was shown; the delay of over five months from even the applicant's asserted date of receipt was inordinate and unexplained

Reasoning

The court accepted arguendo that the decision may have been received on 17th November 2025, but noted the applicant did not lodge the intended appeal until 17th April 2026, a period of over five months. The PSC, not being a party, could not be put to task on when communication was made. The delay was therefore inordinate and unexplained, and no basis for extension was laid.

p. 16
02

Whether the 30-day timeline under Rule 12(2) of the ELRC (Procedure) Rules is mandatory

Holding

The use of 'shall' in the prescribed timeline makes it mandatory, not a mere aspiration

Reasoning

The court endorsed the respondent's submission that the word 'shall' in the rule prescribing the 30-day period for filing appeals from PSC decisions denotes a mandatory requirement. The prescribed timelines promote orderly administration of justice and finality of litigation, and cannot be treated as aspirational.

p. 17

Legal principles established

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  • Where the law prescribes a period using the word 'shall', the timeline is mandatory and not a mere aspiration
  • A delay of over five months in lodging an intended appeal, even measured from the applicant's own asserted date of receipt, is inordinate and unexplained and justifies refusal of extension of time

Court orders

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  1. 1.The application (motion dated 20th March 2026 seeking leave to appeal out of time) is dismissed
  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

Jurisdiction invoked
Rule 18 of the Employment and Labour Relations Court Rules, 2024 (discretion to enlarge time), invoked in respect of an intended appeal under section 87(2) of the Public Service Commission Act

Relief refused

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Leave to appeal out of time against the PSC decision dated 8th October 2025 in County Review No. 010 of 2025

Delay of over five months between alleged receipt of the decision and lodging the intended appeal was inordinate and unexplained; no basis laid for extension of time

p. 17

Deeming the annexed draft Memorandum of Appeal as duly filed upon payment of requisite fees

Follows from dismissal of the application for extension of time

p. 17

Costs of the application to abide the outcome of the intended appeal

Application dismissed; court instead made no order as to costs

p. 17

Costs

No order as to costs - each party to bear their own costs ("dismissed albeit with 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.

In my view, there is no basis laid for the extension of time and the motion before me fails and is dismissed albeit with no order as to costs.
p. 17Final orders - dismissal of application for extension of time
The law has given the timelines for doing something and it uses the word “shall”. That does not suggest it is a mere aspiration as words such as ‘within 30 days’ or ‘by the end of 30 days’ connote.
p. 17Mandatory nature of statutory timelines
This was a period of over five months. The late filing is therefore one that characterises the delay as inordinate and to boot, unexplained.
p. 16Inordinate and unexplained delay
The Public Service Commission is also not a party and cannot therefore be put to task as to when the communication was made.
p. 16Non-joinder of the PSC and allegations against it

Issues in the judgment

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minor

Judgment headed 'MISCELLAENOUS APPLICATION' - misspelling of 'MISCELLANEOUS' in the cause title

minor

Court station is Kisumu but the judgment is dated and delivered at Kisii

minor

Disposition contains an incomplete sentence stating the applicant's assertion without a finding

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, "Marvin Omondi Ngei v Migori County Public Service Board", Case Analysis (2026). Miscellaneous Application No. E019 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2613/eng@2026-09-28

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