https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1055

Board of Management (BOM) (St Aloysuis Secondary School) & 3 others v Chomba (Civil Appeal (Application) E1069 of 2025) [2026] KECA 1055 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1055 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E1069 of 2025 P Lilan, JA May 29, 2026 Between Board of Management (BOM) (St Aloysuis Secondary School) 1st Applicant John Kuloba, (Chairman, BOM) 2nd Applicant Beatrice Naina (Secretary, BOM) 3rd Applicant Father Terry 4th Applicant and Bernard Chomba Respondent (Appeal from the Judgment of the Employment and Labour Relations Court at Nairobi (Wasilwa J) dated 29th September, 2025 in ELRC NO.E677 OF 2022) Ruling 1.By a notice of motion dated 26th January 2026, the applicants having already filed memorandum and record of appeal dated 10th December, 20225 out of time, are now invoking Rule 4 C for extension of time within which to file afresh and serve the Memorandum and Record of appeal; and that costs be provided for. The Application is supported by the affidavit of even date sworn by Beatrice Maina, the Secretary of the 1st applicant. The respondent had filed a suit against the respondents in Nairobi ELRC No. E677 of 2022 alleging unlawful termination of his employment. Judgment was entered on 29th September 2025 allowing the claim. 2.Aggrieved by the outcome, the applicants embarked on the process, contesting the said judgment by way of appeal to this court, starting with the filing of Notice of Appeal dated 10th October 2025, which was lodged with the Registrar of the trial court on even date. The applicants wrote to the court on 30th September 2025 requesting for copies of the certified judgment as well as typed proceedings. The certified copy of judgment was furnished on 4th October 2025. The typed proceedings were supplied to the applicants on 11th December 2025 and finally they obtained a certificate of delay dated 7th January 2026. It is averred that counsel for applicants inadvertently made wrong computation of time leading to filing the appeal two days late without seeking extension of time and that the said delay was negligible, not inordinate and/or deliberate. 3.In opposing the application, Bernard Chomba, the respondent, by a replying affidavit dated 21st April 2026, deposes that the application is incompetent as the decree appealed against is not part of the record; and that the delay is inordinate, adding that no reasonable explanation has been given as the delay. 4.Having considered the application, taking into account the rival contentions stated in the affidavits and arguments presented by way of the written submissions filed by both parties, I now turn to the central question for determination, namely, whether the applicant has met the threshold for the discretionary relief under rules. The discretion under rule 4 of the Court of Appeal Rules, 2022, is wide and unfettered. In deciding whether to grant an applicant extension of time, the discretion must be exercised judiciously as was set out in Leo Sila Mutiso vs Rose Wangari Mwangi - Civil Application No. Nai 255/97 (unreported), which pointed out that this discretion, however, must be exercised judiciously and upon reason, rather than arbitrarily, capriciously on a whim or sentiment. [See Julius Kamau Kithaka vs Waruguru Kithaki & 2 Others [2013] eKLR]. 5.In Imperial Bank (IR) & Anor vs Alnashir Popat and Others [2018] eKLR, M’Inoti, J. had this to say concerning Rule 4:“A look at legislative history of Rule 4 will show that before 1985 the rule required that an applicant to show ‘sufficient reason’ why discretion should be exercised in his favor. After an amendment in 1985 that ‘sufficient stricture’ was removed, and the court was henceforth allowed to extend time on such terms that it deemed just. As subsequent decisions show, the amendment did not mean that the court will extend time merely on the asking. The party seeking extension of time must establish basis upon which court should exercise its discretion in its favor.” 6.While bearing in mind the foregoing, the court must be cognizant of the unique circumstances of each case as was discussed in Mongira & Another vs Makori & Another [2005] e KLR. The Supreme Court has settled principles to guide in exercise of discretion to extend time. The case of Nicholas Kiptoo Korir Arap Salat vs IEBC [2014] e KLR sets down these principles as follows: -i.Extension of time is not a right to 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 extension of time has the burden of laying basis to the satisfaction of the court.iii.Whether the court should exercise its discretion to extend time is a consideration to be made on a case- by-case basis.iv.Where there is 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 Respondent if extension is granted.vi.Whether the application has been brought without undue delay.vii.Whether in certain cases public interest should be aV consideration for extension of time.One other consideration included by the learned Judge in the case of Julius Kamau Kitheka (supra) is whether prima facie the intended Appeal/Appeal has chances of success or is a mere frivolity. 7.The Applicants say that the reason for the delay in filing and serving the memorandum and Record of appeal was the absence of the typed proceedings which were not provided in good time by the superior court. A certificate of delay has been provided in this regard. In addition, it is stated that there was miscomputation of time leading to the late filing of the documents 2 days out of time and that in essence the substantive appeal has already been filed and any prejudice faced by the respondent may be mitigated by costs. 8.The other issue for consideration is whether there has been inordinate delay. The delay by only 2 days would not be described as inordinately long. The respondent on the other hand submits that the record of appeal as filed is incompetent owing to the fact the decree being appealed against is missing from the record to date. It is this court’s view that the missing decree is not fatal to this application as the applicants can always put in a supplementary record to include the missing decree, seeing that the substantive appeal is already filed. 9.It is not necessary to explore whether the Intended Appeal has chances of success, since that is outside the role of a single judge at this stage. This Court held in the case of Athuman Nasura Juma v Afwa Mohammed Ramadhan CA 227/15:“…this court has to be careful to ensure that the intended Appeal has merit or not is not an issue to be determined with finality by a single Judge”. 10.Having found the delay is not inordinate, and that the explanation rendered has been satisfactory, I find that the applicants have demonstrated sufficient reasons to warrant the orders sought. The application is allowed. The applicants shall file and serve the Memorandum and Record of Appeal afresh, within fourteen (14) days of this ruling. Costs of the application shall be borne by the applicants. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY, 2026.PAUL LILAN………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.