In a long-running legal saga marked by missed deadlines, allegations of vanishing advocates and repeated applications, the Court of Appeal in Mombasa has dismissed yet another attempt by Laban Owino Ochieng to resurrect his labour dispute against Awanad Enterprises Limited, Pili Management Consultants Limited, and Hezron Awiti Bollo over unfair termination.
In a ruling delivered on May 9, 2025, Justice Gatembu Kairu dismissed an application filed by Ochieng on November 28, 2024.
The application sought an extension of time to file a record of appeal against a decision by the Employment and Labour Relations Court (ELRC), which had previously struck out Ochieng’s case as time-barred.
A legal journey dogged by delay
The legal troubles date back to June 18, 2021, when the ELRC dismissed Ochieng’s claim, citing it as time-barred.
Determined to appeal the decision, Ochieng lodged the appeal, which was marred by procedural missteps.
The record of appeal, which was due by September 2, 2021, was not filed until December 20, 2022—a delay of over one year and three months.
Even more troubling, the appeal was also served out of time, prompting the respondents to file an application on May 5, 2023, to have it struck out.
The Court of Appeal ruled in their favour on April 26, 2024, declaring the appeal incompetent and striking it out with costs.
A further attempt by Ochieng to have that ruling reviewed or set aside was dismissed on November 22, 2024.
Excuses and counterarguments
In the latest application, Ochieng attributed the delay to two main factors; the unavailability of certified copies of the ruling and proceedings from the ELRC, and more significantly, the disappearance of his former lawyer.
“The delay was occasioned by the applicant’s former advocate having changed offices and disappeared and could not be traced on time,” submissions filed by Ochieng’s new legal team, Mosi & Company Advocates read.
They argued that the failings of his former counsel should not deny him access to justice and insisted that the appeal raised "serious constitutional questions" that deserved attention.
But this did not sway the court. Justice Gatembu noted inconsistencies in the explanations given, questioning whether the delay was due to missing documents, a missing advocate, or both.
“A delay of one year and three months in filing the record of appeal. What is the applicant’s explanation? I am not sure whether it is both or either of those reasons,” the judge stated.
Citing past judgments, the court underscored the importance of litigants taking personal responsibility in following up on their cases, even when represented by legal counsel.
Respondents cry foul over endless litigation
Opposing the application, the respondents, Awanad Enterprises, Pili Management, and Hezron Awiti, argued that Ochieng had made no sufficient effort to explain the extensive delays or justify the failure to seek an extension in good time.
They further accused him of burdening them with “a multiplicity of actions and endless litigation” and dismissed the intended appeal as frivolous.
The respondents, on the other hand, urged that the decision of the ELRC, the subject of intended appeal, was delivered way back on June 18, 2021, that the delay in lodging the appeal and in making this application has not been explained at all or sufficiently;
“The decision of the ELRC, the subject of intended appeal, was delivered way back on June 18, 2021,” their counsel, Amuga, pointed out.
“The delay in lodging the appeal and in making this application has not been explained at all or sufficiently.”
The respondents maintained that Ochieng had failed to act even when notified, in May 2023, of defects in the appeal.
Rather than promptly seeking an extension, he chose to wait for a ruling, attempt a review and only then filed the current application, more than three years after the original ruling.
Judicial principles reinforced
Justice Gatembu anchored his decision in legal precedent case, where the Supreme Court made it clear that the extension of time is not a right, but an equitable remedy granted at the court’s discretion and only to deserving parties.
“The party seeking extension of time has the burden to lay a basis to the satisfaction of the court,” Gatembu stated, echoing the Supreme Court’s words.
He also invoked an earlier decision, which emphasised a broad range of factors that courts should consider, including the period and reasons for delay, chances of success, potential prejudice to the respondent and public interest.
In Ochieng’s case, the judge was not convinced.
“There is no explanation for that delay,” Justice Gatembu said.
Final nail in the coffin?
With this ruling, Ochieng’s hopes of reviving his appeal seem dim.
The court's decision to dismiss the application with costs further signals its frustration with his handling of the matter.
“This application was not filed until November 2024. There is no explanation for that delay,” the ruling emphasised.
“I am not persuaded that the applicant has laid a proper basis for the Court to exercise its discretion in his favour.”
The ruling brings to a close another chapter in what has become a drawn-out and costly legal contest.
