https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1082

Keroche Breweries Ltd v Shollei (Civil Application E020 of 2023) [2026] KECA 1082 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KECA 1082 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E020 of 2023 JM Mativo, JA June 3, 2026 Between Keroche Breweries Ltd Applicant and Sam Krus Shollei Respondent (Being an application for extension of time to file an application for reinstatement arising from the dismissal order dated 19th June 2023 from judgment of the Employment and Labour Relations Court at Nakuru (H. Wasilwa, J.) dated 27th September 2022 in ELRC Cause No. 35 of 2019) Ruling 1.This ruling determines the application dated 20th April 2026 by Keroche Breweries Ltd (the applicant). A brief background to this application is necessary in order to properly contextualize the diametrically opposed arguments urged by the parties in support of their respective positions. Luckily, this history is straight forward and common ground as is evident from the application and the response to the application. 2.In a judgment delivered on 27th September 2022 in Nakuru Employment and Labour Relations Court (ELRC) Cause No. 35 of 2019, Wasilwa, J. entered judgment in favour of the respondent against the applicant in the sum of Kshs.45,550,051/- together with costs and interests. Aggrieved by the said verdict, the applicant filed a notice of appeal dated 5th October 2022 signifying its intention to mount an appeal against the said decision. 3.By an application dated 8th March 2023, the applicant through its then advocates M/s Kabugu & Company Advocates applied for stay of execution of the said judgment pending the hearing and determination of its intended appeal. The said application was scheduled for hearing on 19th June 2023. Both parties were duly served with a hearing notice by the Court. However, the applicant’s then advocate did not attend Court, hence, the application was dismissed for non-attendance under Rule 58 of the Court of Appeal Rules, 2022. Rules 58 (3) and (4) provides as follows:3.Where an application has been dismissed or allowed under sub-rule (2), the party in whose absence the application was determined may apply to the Court to restore the application for hearing or to rehear it, as the case may be, if that party can show that he or she was prevented by any sufficient cause from appearing when the application was called on for hearing.4.An application made under sub-rule (3) shall be made within thirty days of the decision of the Court, or in the case of a party who would have been served with notice of the hearing but was not so served, within thirty days after that party’s first hearing of that decision. 4.Notably, sub-rule (4) in peremptory terms provides that an application for restoration shall be filed within 30 days from the date of dismissal. The applicant did not move the Court within the time frame prescribed under the said rule. Instead, its present advocates M/s Waruiru Kariuku & Mwangale Advocates, filed an application seeking to reinstate the dismissed application dated 24th July 2025, which they withdrew on 13th January 2026 after the Court drew its attention to the above provisions. Notably, this application was filed well over 11 months after the earlier application had been dismissed for non-attendance. 5.The applicant is now before this Court vide its application dated 20th April 2026 seeking extension of time within which to file its application for reinstatement of its application dated 8th March 2023 which was dismissed for want of prosecution on 19th June 2023. The applicant prays for costs of the application to be in the cause. The germane ground urged by the applicant is that the failure to attend Court is attributed to the applicant’s then advocate. The applicant contends that its existence and that of over 500 employees is under threat should execution proceed because the amount at stake is colossal. It also states that its appeal is arguable and no prejudice will be suffered by the respondent. 6.In reply to the application, the respondent filed a replying affidavit dated 15th May 2026. The salient averments are: (a) the oft-cited principle that mistakes of counsel should not be visited upon the client is not a carte blanche for negligence, indolence or deliberate delay. That maxim only protects a litigant who has acted with diligence, transparency and good faith and not one who passively watches deadlines lapse or, as in this case, participates in counsel-hopping while execution proceeds; (b) the applicant’s then advocates, through a series of letters to this Court, requested for a date for directions of their application; (c) following the incessant requests for a date, the application was fixed for hearing on 19th June 2023, but the said advocates did not attend hearing, hence the dismissal for non-attendance; (d) the applicant cannot purport to hide behind their advocates when the chronology of events shows full knowledge of the dismissal proceedings, shifting legal- representation, and no real effort to prosecute their own- application.; (e) the applicant only applied for reinstatement after over two years; (f) no reasonable explanation has been provided for the over two year old delay; (g) the application dated 20th April 2026 is an afterthought to frustrate execution of the decree; (h) there is no evidence that a competent notice of appeal has been filed or a letter requesting for proceedings, and (i) the delay has not been satisfactorily explained. 7.In support of the application, the applicant filed submission dated 12th May 2026 basically urging that it has demonstrated sufficient cause for its plea for extension of time to be allowed, that Rule 4 clothes this Court with jurisdiction to grant the relief sought, and the delay has been satisfactorily explained. The applicant relied on Kirinyanga Public Service Board vs. County Assembly of Kirinyaga & 2 Others [2025] KECA and Tongkwang & Ano. vs. Lokere & Ano. [2026] KECA in support of the proposition that an inadvertence mistake of counsel constitutes sufficient cause to merit extension of time. The applicant also maintained that its intended appeal is arguable and that it is in the interests of justice that the prayers sought be granted which according to the applicant will accord with Article 159 (2) (d) of the Constitution. 8.The respondent did not file submissions despite the case management directions issued on 13th May 2026 in the presence of both parties. 9.The application before me seeks the exercise of discretion to extend time under Rule 4 of the Court of Appeal Rules, 2022 which provides that the Court may on such terms as it thinks just, by order extend the time limited by the Rules or by any decision of the Court of a Superior Court for the doing of any act authorized or required by the Rules, whether before or after the doing of the act and a reference in these Rules to any such time shall be construed as a reference to that time as extended. 10.Rule 58 (3) allows a party whose application was dismissed or allowed in their absence to request a restoration or rehearing if they can show sufficient cause for their non-appearance. Rule 58 (4) stipulates that this application must be filed within 30 days of the decision or within 30 days of becoming aware of the decision if notice was not served. 11.The two conditions for the reinstatement of an application dismissed or allowed for non-attendance under Rule 58 are: (a) whether a sufficient cause has been shown, and (b) whether the application is made within 30 days of the decision or 30 days after a party who ought to have been served but was not served first hears of the decision. (See this Court’s decision in Route 3 Company Limited & another vs. Nairobi City County & Ano. [2025] KECA 315 (KLR)). In this case, the application was not filed within 30 days, therefore, the applicant must satisfy sufficient cause for failing to attend Court and for failing to file the application within 30 days. 12.The applicant’s germane ground is that their previous advocate failed to attend Court despite being served. The applicant actually concedes that its advocate was served with the hearing notice. While courts generally try to ensure that a litigant does not suffer due to an advocate's error, there is no absolute rule that a mistake of counsel automatically constitutes "sufficient cause" to grant an extension of time or to constitute a sufficient reason for failure to attend court. The Supreme Court of India in the foundational case of Lala Mata Din vs. A. Narayanan [1969] 2 SCC 770 laid down the baseline principle that a lawyer's mistake is not a blanket pass. The Court explicitly stated that there is no general proposition that a mistake of counsel by itself is always a sufficient cause for the condonation of delay. The mistake must be strictly bona fide (made in good faith despite exercising reasonable care). If the mistake arises from a lack of care, casualness, or is used as a device to cover up an ulterior purpose, the application for extension of time must be rejected. 13.In Salil Dutta v T.M. & M.C. Private Ltd. [1993], the Supreme Court of India restricted the tendency of litigants to blindly shift blame onto their advocates. The Court noted that an advocate is the legal agent of the party. The acts and omissions of the advocate, within the limits of their authority, are legally considered the acts and omissions of the client. Litigants cannot claim absolute immunity from the law of limitation simply by putting the entire blame on their counsel, especially when the timeline reveals a systemic lack of vigilance from both parties. In this case, there is a delay of over two years which has not been explained. A blanket explanation for a delay will not suffice. The above decision reaffirmed that no general principle can be laid down to insulate a party from all mistakes committed by their counsel. 14.In any event, it is settled position that a case belongs to the litigant, not the advocate. A litigant has an independent duty to remain vigilant about their pending judicial proceedings and cannot completely disown their lawyer’s inaction to revive a stale claim. As mentioned earlier, it took over two years for the applicant to instruct another advocate. This period of in action has not been explained. 15.This Court has a duty under sections 3A and 3B of the Appellate Jurisdiction Act to ensure that the factors to be considered while condoning a delay are consistent with the overriding objectives of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court. 16.As was held by the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR the following considerations should guide the courts:i.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;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;iii.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case- to-case basis;iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;v.Whether there will be any prejudice suffered by the respondents if the extension is granted;vi.Whether the application has been brought without undue delay; and,vii.Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 17.In Murai vs. Wainaina (No. 3) [1982] KLR 33 (Madan, JA) held that an advocate’s bona fide mistake, but not inordinate delay on the advocate’s part, may amount to sufficient cause. In the context of granting an extension of time (condonation of delay), it is my view that "considerations of justice to both sides" is a fundamental, balancing factor that a court must evaluate. While courts lean toward a liberal approach to ensure cases are decided on substantive merits, they must simultaneously protect the vested legal rights that accrue to the opposite party once the limitation period expires. Therefore, weighing justice to both sides requires balancing two competing tenets. The expiration of the limitation period creates a valuable, substantive legal right for the opposing party. They are legally entitled to consider the dispute permanently settled and should not be lightly dragged back into litigation due to the other party's lethargy. In the landmark case of Ramlal, Motilal and Chhoteylal vs. Rewa Coalfields Ltd. AIR 1962 SC 361, the Supreme Court on India emphasized that even if an applicant shows "sufficient cause" for the delay, the court's discretion to grant an extension remains optional. The Court must look at all surrounding facts, including the prejudice caused to the respondent. The right accrued to the decree-holder by the lapse of time must not be disturbed unless the equities heavily favor the applicant. 18.Applying the threshold in the above cited cases to the uncontroverted position herein, I find the period of delay subject of this application is inordinate to the extent that it disentitles the applicant the relief sought. 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. Since the respondent did not file submissions, I make no order as to costs. DATED AND DELIVERED AT NAKURU THIS 3RD DAY OF JUNE, 2026.J. MATIVO................................ JUDGE OF APPEALI certify that this is a true copy of the original.Signed.Deputy Registrar