Odhiambo v Narcol Aluminium Rolling Mills Limited (Miscellaneous Application E130 of 2025) [2026] KEELRC 1481 (KLR) (28 May 2026) (Ruling)

Odhiambo v Narcol Aluminium Rolling Mills Limited (Miscellaneous Application E130 of 2025) [2026] KEELRC 1481 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1481 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Miscellaneous Application E130 of 2025 K Ocharo, J May 28, 2026 Between David Odhiambo Applicant and Narcol Aluminium Rolling Mills Limited Respondent Ruling Background 1.In the Application dated 10th November, 2025, the Applicant prayed;1.That the Honourable Court be pleased to grant the Applicants leave to file the Appeal out of time against the Judgment of the Honourable Emily M. Mwamuye SRM delivered on 17th July, 2025 in CMELRC No. E429 OF 2024 David Odhiambo versus Narcol Aluminium Rolling Mills Limited.2.That the costs of this application be provided for. Applicant’s Application 2.The Applicant, David Odhiambo, seeks leave to file an appeal out of time against the judgment delivered on 17 July 2025 in CMELRC No. E429 of 2024. He states that the trial court dismissed his claim on the ground that he failed to prove an employer-employee relationship with the Respondent. 3.The Applicant explains that when the judgment was delivered, he was upcountry attending a relative’s funeral and did not return to Mombasa until 3 November 2025. He states that he visited his advocates’ office on 4 November 2025 to discuss the way forward regarding the dismissed suit, and thereafter instructed his advocates to lodge an appeal, by which time the statutory period for filing the appeal had already lapsed. 4.The Applicant asserts that the delay of approximately three months is not unreasonable and is justifiable given the circumstances. 5.According to the Applicant, unless the orders sought are granted, he stands to suffer immense prejudice and damage arising from the judgment dismissing his case. He therefore urges the court to exercise its discretion in the interests of justice and allow him to file the intended appeal out of time. Respondent’s case 6.By an affidavit sworn by Lewis Mwalimu on behalf of Narcol Aluminium Rolling Mills Limited, the Respondent opposes the Applicant’s motion for leave to file an appeal out of time. The Respondent contends that the application lacks merit, constitutes an abuse of the court process, and ought to be dismissed. 7.The Respondent argues that the application was filed after an inordinate delay of about five months and that the Applicant has failed to provide a plausible or satisfactory explanation for it. According to the Respondent, the Applicant was aware of the suit's dismissal as early as July 2025 but failed to take prompt action. 8.The Respondent further challenges the Applicant’s explanation that he travelled upcountry for a relative’s funeral and returned to Mombasa only on 3rd November 2025. It is contended that no evidence has been produced to support those averments and that the assertion that the Applicant remained away for several months due to a funeral lacks any rational basis. 9.The Respondent also maintains that the Applicant, as a litigant, had a duty to remain vigilant and follow up on his case, which he failed to do. In addition, the Respondent contends that the intended appeal has little prospect of success and does not raise any plausible grounds for an extension of time. 10.Finally, the Respondent argues that it will suffer prejudice if the application is allowed because litigation must come to an end. The Respondent therefore urges the court to find that the application is without merit and dismiss it with costs. Analysis and determination 11.The issue for determination is whether the Applicant has established a sufficient basis to be granted leave to file an appeal out of time against the judgment delivered on 17th July 2025 in CMELRC No. E429 of 2024. 12.That the extension of time for filing an appeal out of time is a discretionary power is trite. The Court of Appeal in Raphael Musila Mutiso & 3 others v Joseph Ndava Nthuka & another [2019] KECA 463 (KLR) held that the extension of time is discretionary and depends on factors such as the length of the delay, the reason for the delay, prejudice to the respondent, and possibly the chances of the intended appeal succeeding. The court emphasised that the most critical consideration is the explanation for the delay, and held that even a short delay may lead to dismissal if no explanation is given, whereas long delays may be excused if satisfactorily explained. 13.Under section 79G of the Civil Procedure Act, an appeal from a subordinate court to the High Court or a court of equal status ought to be filed within thirty days of the date of the decree or order appealed against, provided that the court may admit an appeal out of time if the Applicant satisfies the court that he had good and sufficient cause for not filing the appeal in time. 14.In the present case, judgment was delivered on 17th July 2025, while the present application was filed on 10th November 2025. The delay is therefore slightly under four months from the date of judgment. The Applicant explains that he was upcountry attending a relative’s funeral at the time judgment was delivered and only returned to Mombasa on 3 November 2025, after which he visited his advocates’ office and issued instructions to appeal. The Respondent, on the other hand, argues that the explanation is unsupported by evidence and does not satisfactorily account for the entire period of delay. 15.The explanation tendered by the Applicant is not entirely satisfactory, particularly regarding the prolonged absence between July and November 2025. No documentary evidence has been produced relating to the alleged funeral or to any inability to follow up on the matter. However, the delay is not so inordinate as to completely exclude the Applicant from the appellate process. Litigants occasionally rely heavily on their advocates for updates on the delivery of judgments and procedural steps. 16.The Applicant has annexed a draft memorandum of appeal challenging the trial court’s finding that no employer-employee relationship existed. The intended appeal contests the trial court’s evidentiary findings. The ground is not an idle ground raised. 17.The Respondent argues that litigation must come to an end and that prejudice will be suffered if an extension is granted. While I appreciate that principle, any prejudice likely to be suffered by the Respondent can be adequately compensated by costs. On the other hand, denial of leave would permanently deprive the Applicant of an opportunity to ventilate his intended appeal. 18.The interests of justice would be better served by allowing the Applicant to pursue the intended appeal. 19.In the upshot, the Applicant’s application is hereby allowed. The Applicant is granted leave of 15 days to file and serve an appeal against the judgment in CMCELRC No. E424 of 2024. READ, SIGNED, AND DELIVERED ON 28TH MAY 2026.OCHARO KEBIRAJUDGE