https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1494

Kaluli v Kassim a.k.a Fatuma Amin Mohamed (Civil Appeal E088 of 2025) [2026] KEELRC 1494 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1494 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Civil Appeal E088 of 2025 K Ocharo, J May 28, 2026 Between Christine Mbinya Kaluli Applicant and Farhiya Kassim a.k.a Fatuma Amin Mohamed Respondent Ruling Background 1.In the application dated 20th May, 2025, before me, the Applicant seeks the following orders;a.That this application be certified urgent and be heard exparte in the first instance.b.That the Honourable Court do grant the Applicant herein leave to lodge an Appeal out of time and the Memorandum of Appeal annexed hereto be admitted.c.Costs 2.The Respondents oppose the application on the basis of the grounds set out in the replying affidavit sworn by the Respondent on 1st September 2025. 3.Pursuant to the directions of this Court, the application was canvassed by way of written submissions. Their respective submissions are on record for consideration. The Application 4.The Applicant filed an application seeking leave to file an appeal out of time against the judgment delivered in ELR Cause No. E081 of 2024, Christine Mbinya Kaluli v Farhiya Kassim alias Fatuma Amin Mohamed, on 23 January 2025, and for the appeal filed herein to be deemed duly filed and served. 5.The Applicant contends that the failure to lodge the appeal within the statutory period was due to her advocate not conveying the outcome of her suit mentioned above in time to provide instructions for an appeal. This followed her relocation upcountry, resulting in a breakdown in communication between her and the Advocate. 6.The Applicant contends that the Respondent would not suffer any prejudice if the orders sought are granted. Analysis and determination 7.The issue for determination is whether the Applicant has established sufficient cause to justify leave to file the appeal out of time. 8.However, before I consider the issue identified, I must point out that this Court has decided to completely ignore the Applicant’s submissions, as in its view they are wholly couched as if they are addressing the appeal itself rather than an application for leave to appeal out of time. Maybe Counsel should learn to stick to relevancies in future. The Respondent’s submissions and the decisions cited are relevant to matters of application for extension of time. 9.Section 79G of the Civil Procedure Act requires appeals from subordinate courts to be filed within thirty days, unless sufficient cause is shown to justify extension of time. 10.The court in the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) relied on the Supreme Court of Judicature Court of Appeal, Civil Division, in Sayers v Clarke Walker (a firm) [2002] EWCA Civ 645 at paragraph 22, where it was observed:“It follows that when considering whether to grant an extension of time for an appeal against a final decision in a case of any complexity, the courts should consider “all the circumstances of the case” including: the interests of the administration of justice; whether the application for relief has been made promptly; whether the failure to comply was intentional; whether there is a good explanation for the failure; the extent to which the party in default has complied with other rules, practice directions and court orders; whether the failure to comply was caused by the party or his legal representative; the effect which the failure to comply had on each party; and the effect which the granting of relief would have on each party.” 11.The judgment sought to be appealed from was delivered on 23 January 2025, while the present application was filed on 20 May 2025. The delay is therefore approximately four months after the statutory period for filing an appeal had lapsed. The Applicant attributes the delay to relocation upcountry following termination and to a consequential breakdown in communication between her and counsel. 12.The Respondent asserts that the Applicant has not placed evidence of relocation before this Court. However, I note that she does not specify what kind of evidence. I have tried to identify which evidence she would have been obliged to place before this Court, other than what she has stated in her affidavit under oath, and none comes to mind. 13.Considering the totality of the circumstances of the matter, including the fact that the Applicant was a house help whose employment was allegedly terminated by the respondent, her assertion that she relocated upcountry as a result, and that the relocation led to a diminishment in effective communication between her and her Counsel, I hold the reason given by the Applicant for the failure to appeal within the requisite time plausible. 14.The foregoing holding should not be seen as ignorance of the point raised by the Respondent that parties have a duty to diligently follow up their cases, and that, therefore, it isn't in every matter where the principle that an Advocate’s mistakes should not be visited on a litigant should be successfully invoked. A successful invocation of the principle would often depend on the circumstances of each case. 15.I should point out that, having considered the period of delay and the circumstances mentioned above, I hold that the delay is not inordinate and does not warrant dismissal of the Applicant’s application on the ground of unreasonable delay. Additionally, I note that the record of appeal has been filed and served. 16.By reason of the foregoing premises, I take the view that the justice of this matter demands that I allow the Applicant’s application herein. Consequently;a.Time for filing the appeal is hereby extended in favour of the Applicant; the appeal herein filed is deemed duly filed and served.b.The costs of the application shall be in the cause. 17.Orders accordingly. READ, SIGNED AND DELIVERED ON 28TH MAY 2026.OCHARO KEBIRAJUDGE