https://new.kenyalaw.org/akn/ke/judgment/keca/2026/983

Livoi v Biodeal Laboratories Ltd (Civil Application E133 of 2026) [2026] KECA 983 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 983 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E133 of 2026 P Lilan, JA May 15, 2026 Between Clifford Otwere Livoi Applicant and Biodeal Laboratories Limited Respondent (Application for extension of time to file record of Appeal from the Judgment of the Employment and Labour Relations Court at Nairobi (C. Bari) dated on 18th December 2025) in ELRC NO. E848 OF 2024) Ruling 1.The application dated 2nd March 2026, made pursuant to Rule 4 Court of Appeal Rules, 2010 (now 2022), seeks extension of time within which to file and serve the record of appeal; and that costs be provided for. The application is supported by the affidavit of even date sworn by Clifford Otwere Livoi, the applicant, acting in person. The applicant had filed a suit against the respondent in the Employment and Labour Relations Court at Nairobi, Cause No. E848 of 2024, and judgment was entered on 18th December 2025, (Christine Bari J). 2.The applicant was aggrieved by the outcome, intends to appeal and submits that he filed the notice of appeal and served the respondent, via its email address, on 19th December 2025 , a day after the judgment was announced and as such was within the 14 day time frame as stipulated by the rules; that he applied for proceedings which he received late and subsequently was issued with a certificate of delay to that effect dated 24th February 2026; and the intended appeal is described as predisposed to a great chance of success. 3.In opposing the application, Mital Shah, the respondent’s Director, by a replying affidavit dated 20th April 2026, deposes that the Notice of Appeal dated 19th December 2025 was only lodged on 18th February 2026 45 days outside the stipulated timeframe and that the applicant’s non-compliance with a mandatory requirement went to the root of the appeal as there was no valid notice of appeal. It is noteworthy that the email that the respondent does not deny that the email used by the applicant to serve the notice is not disowned by the respondents and therefore, unless proved otherwise, it is the proper address for serving the respondent. 4.Has the Applicant met the requirements for granting relief under Rule 4 of the Court of Appeal Rules? I have considered grounds set out in support of the application, the affidavits on record as well as the written submissions by both parties. Rule 4 of the Court of Appeal Rules, 2022, gives the court unfettered discretion in deciding whether to grant an applicant extension of time to do a particular prescribed action. Although under the said rule, this Court has unfettered discretion on whether to extend time or not, that 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] e KLR]. 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.Discretion also depends on circumstances of each case as was discussed in Mongira & Another vs Makori & Another [2005] eKLR. 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] eKLR 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 a 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 Applicant has in the supporting affidavit, tried to explain the reason for the delay in serving the record of appeal, pegging it to receiving the typed proceedings late as corroborated by the certificate of delay. The respondent on the other hand submits that the applicant has filed the notice of appeal 45 days out of time, having been lodged on 19th February 2026 and that there is no valid appeal in existence. This court notes that from the documents annexed in the applicants’ additional submissions that indeed the applicant did file the notice a day after judgment was entered, and that on the same date served the respondent via email and the date stamp is visible on the copy of email in the said submissions. I hasten to point out that unfortunately these crucial exhibits feature only in additional submissions if the applicant yet ordinarily they should have been placed on record in good time by way of affidavit. 8.The other issue for consideration is whether there has been inordinate delay. I take note that, the notice was filed and served on 19th December 2025 which was prompt and therefore well on time. What has not been filed is the record of appeal and the applicant attributes this to not receiving the typed proceedings in good time. From the certificate of delay the typed proceedings took 61 days to be prepared and supplied and the said proceedings were collected on 18th February 2026, whereas the certificate of delay is dated 24th February 2026. The application for extension of time is dated 2nd March 2026, around 10 days after receiving the proceedings. 9.Considering the fact that the typed proceedings were late, the period of around a month or so would not be described as inordinately long In Anastasius H. Kamau v Karen Insurance Brokers Limited [2008] eKLR, J. Aluoch, JA found that delay of 3 months (90) days was not inordinate; this court is of the same disposition. 10.On the issue as to whether or not the Intended Appeal has any chance of success, this court is conscious of the fact that, it is not the role of a single judge to determine the merits or otherwise of the Appeal. This Court has held in the case of Athuman Nasura Juma v Afwa Mohammed Ramadhan, CA 227 of 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”. 11.I must bear this in mind whilst determining the present application, the less said the better. 12.I find that the delay is not inordinate and the explanation for the delay given is satisfactory; there are sufficient reasons to warrant the orders sought. The application is meritorious and is hereby allowed with no order as to costs. It is further directed that the applicant shall file and serve the record of appeal within 14 days from the date of this ruling. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026PAUL LILAN..........................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR