https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1959

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC MISCELLANEOUS APPLICATION NO. E006 OF 2026 (Before Hon. Lady Justice Anna Ngibuini Mwaure) MARY NJAMBI KARUGA...….……..……....…….…. APPLICANT VERSUS STYLES INDUSTRIES LIMITED…………. ………….RESPONDENT RULING Introduction 1. The Applicant filed a Notice of Motion dated 29th January 2026 under Certificate of urgency seeking the following orders that: 1.This Honourable Court be pleased to extend time to the Applicant to file an Appeal against the ruling of Honourable R. Kefa dated 9th August 2023 arising from an application dated 12th May 2023. 2.This Honourable Court be pleased to make such other orders as may meet the ends of justice in this case. 3.Costs of the application be in the cause. 2. The application is brought under section 79G of the Civil Procedure Act, section 12(3)(viii) of NAKURU MISC NO. E006 OF 2026 RULING 1 | P A G E the Employment and Labour Relation Court, Rule 8(1) and 33 of the Employment and Labour Relations Court(Procedure) Rules 2016, Articles 162(2)(a), 159(2)(d) of the Constitution and all other enabling provisions of the law. Applicant’s case 3. The application is supported by the affidavit of the Applicant sworn on even date as the application. 4. The Applicant avers that she was unable to obtain the typed proceedings and ruling within the prescribed time despite her advocates’ repeated written requests to the court. The delay was occasioned by a substantial backlog in the typing of proceedings, which hindered timely supply of the required documents. 5. The Applicant further avers that she has an arguable appeal, as evidenced by the Draft Memorandum of Appeal and the accompanying Draft Record of Appeal, both duly indexed and presented within the supporting documentation. Respondent’s grounds of opposition 6. The Respondent opposed the application vide grounds of opposition dated 4th May 2026 on the following grounds as follows that: NAKURU MISC NO. E006 OF 2026 RULING 2 | P A G E 1.The application is incompetent, misconceived, bad in law and an abuse of the court process. 2.The Applicant has not laid any sufficient, plausible and/or satisfactory basis to warrant the exercise of this Honourable Court’s discretion in her favour. 3.The delay of over two (2) years from the date of delivery of the ruling on 9th August 2023 is inordinate, unreasonable and inexcusable. 4.The Applicant has failed to demonstrate diligent pursuit of the proceedings. In any case, nothing could have stopped the Applicant from perusing the file and filing an appeal within a reasonable time. 5.The alleged inability to obtain proceedings does not sufficiently explain the entire period of delay. 6. The draft Memorandum of Appeal annexed to the Application does not demonstrate the existence of an arguable appeal with reasonable chances of success. 7.Litigation must come to an end, and the Applicant cannot be allowed to revive stale proceedings to the prejudice of the Respondent. 8.The Application offends the principles governing extension of time as settled in law and judicial precedent and further, no NAKURU MISC NO. E006 OF 2026 RULING 3 | P A G E exceptional circumstances have been demonstrated to warrant extension of time. 9. The Application lacks merit and ought to be dismissed with costs to the Respondent. Applicant’s supplementary affidavit 7. The Applicant filed a supplementary affidavit dated 12th May 2026, avers that the grounds of opposition are misleading and made in bad faith to obstruct justice. 8. The Applicant avers her repeated but unsuccessful attempts to obtain court proceedings, emphasizing their importance for assessing her application. 9. The Applicant argues that the Respondent has shown no prejudice, whereas she continues to suffer due to the trial court’s failure to deliver judgment on the merits. 10. The Applicant underscores that her case, filed in 2017 under the Work Injury Benefits Act (WIBA) before the Supreme Court’s final determination, had already reached the evidentiary and submission stage, making referral to the Labour Office unreasonable. NAKURU MISC NO. E006 OF 2026 RULING 4 | P A G E 11. The Applicant concludes that exceptional circumstances exist, the matter remains pending for determination, and the respondent’s opposition cannot outweigh the necessity and fairness of her application. 12. Parties canvassed the application by way of submissions. Applicant’s submissions 13. The Applicant submitted that the appeal is merited and raises substantial questions of law as she has filed a Draft Record and Memorandum of Appeal, asserting that the trial court’s directions, particularly those based on Gazette Notice No. 5476 of 28th April 2023, were inconsistent with the Supreme Court’s interpretation of the WIBA. The Supreme Court, in its judgment of 3rd December 2019, clarified that sections 16, 23, 25, 52, and 58 of WIBA align with the Constitution by establishing a statutory dispute resolution process that begins with investigation and award by the Director of Occupational Safety and Health Services, followed by an appeal to the Employment and Labour Relations Court. The Applicant therefore contended that the appeal is arguable and grounded in constitutional and statutory principles. NAKURU MISC NO. E006 OF 2026 RULING 5 | P A G E 14. The Applicant argued that retrospective application of the WIBA, emphasizing that section 58(2) of the Act does not contravene the Constitution or extinguish access to justice. It affirms that claimants with pending cases have a legitimate expectation that their matters will be concluded under judicial processes. The Law Society of Kenya’s resolution of 21st March 2023 urged that pending claims be finalized in their respective courts. Accordingly, claims filed before WIBA’s commencement proceed under the repealed Workmen’s Compensation Act, while those filed after WIBA but before the Supreme Court’s decision continue before the Employment and Labour Relations Court or Magistrates’ Courts. The Applicant relied on the cases of Attorney General V Law Society of Kenya & Another [2009] KECA 454 (KLR), which declared certain WIBA provisions unconstitutional, and Attorney- General & 2 Others v Ndii & 79 Others; Prof. Rosalind Dixon & 7 Others [2022] KESC 8 (KLR), which upheld litigants’ right to lodge claims in court. The trial court was thus expected to decide the matter on its merits, as the claim was filed on 20th March 2017 following the High Court’s 2009 decision granting the plaintiff leeway to file the claim. NAKURU MISC NO. E006 OF 2026 RULING 6 | P A G E 15.The Applicant submitted that the suit was properly filed before the Supreme Court’s decision in Attorney General & 2 Others v Ndii & 79 Others(supra), confirming compliance with Gazette Notice Clauses 6 and 7. The Applicant asserts that the appeal is arguable since the trial court had directed the matter to the Director of Occupational Safety and Health Services, who failed to act, resulting in injustice. The Applicant highlights evidence from the Draft Record of Appeal showing correspondence and orders issued on 13th and 28th July 2022, which the Director ignored. The Applicant later filed an application on 2nd May 2022, attaching the Gazette Notice and detailing the Director’s inaction. 16. On the issue of delay, the Applicant refers to the Certificate of Delay issued on 31st December 2025, confirming timely filing of the application on 29th January 2026. Finally, the Applicant proposes that the Court grant leave to appeal against the directions issued on 13th July 2022 and extracted on 28th July 2022, as replicated in the directions of 9th August 2023. 17. The Applicant submitted that there are two possible courses of action for the Court. The NAKURU MISC NO. E006 OF 2026 RULING 7 | P A G E second option, grounded in section 3A of the Civil Procedure Act, empowers the Court to set aside the impugned orders and direct the trial court to determine the matter on its merits without requiring a formal appeal. This option is deemed superior to the first because pursuing an appeal would prolong proceedings and maintain uncertainty. The Applicant argued that the directions challenged are procedural rather than substantive rulings, and since the trial court was functus officio, a review was not feasible. 18.Consequently, the Applicant urges the court to issue superior directions to resolve the matter and, in conclusion, humbly prays that the Court allows the Application dated 29th January 2026 and awards costs. 19.At the time of writing of this ruling, the Respondent did not file their respective written submissions. Analysis and determination 20.The court has considered the pleadings and submissions on record; the issue for determination is whether the application to extend the time for appeal ought to be granted. 21. In Salat v Independent Electoral and Boundaries Commission & 7 Others NAKURU MISC NO. E006 OF 2026 RULING 8 | P A G E [2014] KESC 12 (KLR) the Supreme Court set out the condition of extension of time as follows: “1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; 3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; 5. Whether there will be any prejudice suffered by the respondents if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 22.In Omole (Suing as the Legal Representative of the Estate of the Late Grace Adhiambo Dongo - Deceased) v Rorio [2026] KECA 209 (KLR), the NAKURU MISC NO. E006 OF 2026 RULING 9 | P A G E Court of Appeal allowed extension of time to file the Notice of appeal out of time. The argument of the court in allowing the appeal was to allow the Estate be heard in full rather than being dismissed on a technicality of missed deadlines. 23. In this instant appeal, the Applicant’s reason for seeking an extension to file an appeal out of time regarding the ruling of Principal Magistrate Hon. Ruth Kefa is that the typed proceedings took too long to be prepared while the Respondent on the other hand argued that the application is incompetent, misconceived, bad in law and an abuse of the court process as the delay has taken two years claiming delay of the proceedings to be typed. The Respondent argued that the Applicant did not demonstrate efforts made to follow the proceedings. 24. The Applicant has given acceptable reasons for extension of time to file an appeal out of time, as the issue of typed proceedings is usually beyond the litigant’s control. The court would be hesitant unless under very justified and inordinate delay to lock out a party from the seat of justice. 25. The court in exercising its discretion therefore, allows application dated 29th January 2026 as RULING 10 | P A G E NAKURU MISC NO. E006 OF 2026 prayed. The Applicant is given 21 days to file their appeal and serve. 26. Costs of the application to be in the cause. Order accordingly. Dated, Signed and Delivered virtually at Nakuru this 10th Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which NAKURU MISC NO. E006 OF 2026 RULING 11 | P A G E impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE NAKURU MISC NO. E006 OF 2026 RULING 12 | P A G E