https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2116

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT ELDORET** **APPEAL NO. E059 OF 2025** *(Before Hon. Lady Justice Maureen Onyango)* **EMMANUEL A. WEMALI ………………………………… APPELLANT** **VERSUS** **KEN KNIT KENYA LIMITED ……….……..…..……. RESPONDENT** **RULING** 1. The application before me for determination is dated 27th February, 2026 and has been brought by the Appellant/Applicant under the provisions of section 3(1), 12, AND 20 of the Employment and Labour Relations Court Act, Rule 17, 28 and 33 of Employment and Labour Relations Court (Procedure) Rules, 2024, Article 159(2) 162(2) and 164(3) of the Constitution of Kenya 2010, Order 50 Rule 1 of the Civil Procedure Rules and sections 3A, 75, 78, 79G and 95 of the Civil Procedure Rules, and all enabling provisions of the law. 2. The Applicant seeks orders that: 3. That the Honourable court be pleased to extend time to lodge an appeal against the judgment/decree in Eldoret MLRC NO. 121 of 2020, Emmanuel A Wemali vs Ken Knit (Kenya) Limited. 4. That the grant of the extension of time do operate retrospectively to validate the memorandum of appeal dated 5th September, 2025 filed and lodged hereto. 5. That the costs of this application do abide the outcome of the intended appeal. 6. The application is supported by the affidavit of **EMMANUEL A. WEMALI**, the Applicant sworn on 27th February, 2026. 7. The grounds upon which the application is made are contained at the foot of the application as reiterated and expounded in the supporting affidavit. In a nutshell, the Applicant states that he filed ELDORET MELRC NO. 121 OF 2020 against the Respondent. The suit was heard by Hon. R. Odenyo, SRM and parties directed to file written submissions. That Hon. R. Odenyo thereafter proceeded on transfer. The suit was mentioned before Hon. D. Mikoyan, CM. and directions made that the file be transmitted to the trial magistrate for judgment writing. The Applicant states that judgment was reserved to be on notice. That judgment was delivered on 29th January, 2025 in the absence of parties. That there was no notice to the parties. that it was not until 7th August, 2025 or thereabouts that his advocates learned about the delivery of the Judgment. That upon the advocates sharing the judgment with the Applicant he did not agree with it and instructed his counsel to file an appeal against the judgment. That the intended appeal raised arguable germane matters for consideration of this court. That the delay in lodging the appeal is thus sufficiently explained. That failure to grant the orders sought in the application would extinguish his constitutional right of appeal without fault on his part. That he is willing to abide by and conditions to be set by the court. That the application should be allowed in the interest of justice. 8. The Respondent filed a replying affidavit sworn by Rebecca Cheluget of 13th April, 2026 opposing the application. 9. The application was disposed of by way of written submissions. Both parties filed submissions which I have considered. 10. The issues for determination are whether this court has power to grant the orders sought, whether the delay in filing appeal has been sufficiently explained and whether the Applicant merits the orders sought. 11. Rule 12 of the Employment and Labour Relations Court (Procedure) Rules, 2024 provides as follows: *12. (1) Where a written law provides for an appeal to the Court, an appellant shall file a memorandum of appeal with the Court within the time specified under that written law.* *(2) Where an appeal is from a magistrate’s court or where no period of appeal is specified in the written law referred to in sub-rule (1), the appeal shall be filed within thirty days from the date the decision is delivered.* 1. An appeal from the Magistrates courts is therefore to be filed within 30 days. 2. Rule 18 provides for extension of time as follows: *18. The Court may, if circumstances justify, extend the time prescribed for the filing of an appeal or any document relating to an appeal.* 1. This court is thus empowered to extend the time for filing of appeal where circumstances justify. In the instant case the Applicant states that judgment was delivered by the trial magistrate who had since proceeded on transfer, in the absence of parties without notice. 2. The Respondent does not contest the fact that the judgement was delivered without notice to the parties. What the Respondent has raised is the inordinate delay and the prejudice it is likely to suffer. 3. The Respondent has relied on the decision in **IVITA V KYUMBU [1975] KEHC 4 (KLR)** where the court dealt with delay in prosecution of a suit. The decision is not relevant to this suit, where no issue has been raised on delay in prosecution thereof. 4. The Respondent further raised the issue of discretion of the court to extend time as discussed by the Supreme Court of Kenya in **NICHOLAS KOPTOO ARAP KORIR SALAT V IEBC & 7 OTHERS [2014] eKLR** where the court stated: *“Discretion to extend time was indeed unfettered. It was incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there were any extenuating circumstances that could enable the court to exercise its discretion in favour of the applicant. The court ought to consider the following principles in exercising the discretion to extend time for filing an appeal:* 1. *Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;* 2. *Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;* 3. *Whether there would be any prejudice suffered by the respondents if the extension was granted;* 4. *Whether the application had been brought without undue delay.* 5. The Respondent further submits that it will suffer prejudice should the orders sought by the Applicant be granted on grounds that this suit has been dormant, that the Applicant was indolent. again, the facts of this case do not support these arguments. In the instant suit the case was pending for judgment with the trial magistrate who had been transferred from the station. Short of filing a complaint against the trial magistrate for delay in writing the judgement or for delivering the judgement without notice to the parties, there was nothing within the Applicants power that he did not do. 6. I am satisfied that the Applicant has sufficiently explained the delay in filing the suit. I accordingly find merit in the application dated 27th February, 2026 and order as follows: * 1. The application dated 27th February, 2026 is hereby granted in terms of prayer 1 thereof. The Appellant to file the appeal within 30 days from today. 2. The costs of the application shall abide the outcome of the appeal. **DATED, DELIVERED AND SIGNED** **ON THIS 18TH DAY OF JUNE 2026.** **M. ONYANGO** **JUDGE**