Everflora Ltd v Simiyu (Civil Application E329 of 2026) [2026] KECA 1301 (KLR) (7 July 2026) (Ruling)

Everflora Ltd v Simiyu (Civil Application E329 of 2026) [2026] KECA 1301 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KECA 1301 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E329 of 2026 A Ali-Aroni, JA July 7, 2026 Between Everflora Limited Applicant and Grace Nafula Simiyu Respondent (Being an application for an extension of time to lodge a notice of appeal from the Judgment of the Employment and Labour Relations Court at Nairobi (Marete, J.) delivered on 17th April, 2026 in ELRCA No. E148 of 2024)) Ruling 1.Before the court is an application by way of a notice of motion dated 22nd June 2026, brought pursuant to rules 4 and 43 of the Court of Appeal Rules, 2022 (‘the Rules'), seeking an extension of time to lodge a notice of appeal and for the notice of appeal to be deemed as lodged and served accordingly. 2.The application is predicated on the grounds on the face of the application and the supporting affidavit of the applicant’s counsel sworn on 22nd June 2026, stating that the impugned judgment was delivered on 17th April 2026; counsel lodged a notice of appeal on 11th May 2026 which was 9 days after the 14 days allowed by the law and duly served the notice of appeal on the respondent's counsel on 12th May 2026; he applied for proceedings and the decree; the failure to lodge the notice of appeal arose from pressure of work in the counsel’s office, in that on the delivery of the judgment, he directed his staff to prepare the notice of appeal and the letter requesting for the proceedings; unfortunately the file was shelved only to be remembered and retrieved long after the 14 days required for the lodging of the notice of appeal had passed. 3.It is averred further that the counsel takes full responsibility for the delay and prays that his mistake is not visited upon the applicant; the intended appeal has overwhelming chances of success as the award of Kshs. 544,720.98 for overtime was for a period of 11 years from year 2012 to 2022 meaning that most of it was out of time contrary to section 89 of the Employment Act; the payment of overtime according to the pay slips was sufficient for the 3 years allowed by the law, the 2 hours of overtime the court found to have been unpaid could not amount to Kshs. 544,720.98 but to Kshs. 112,170.24 in the 3 years allowed by the law and was well taken care of by the amount in the pay slip; the court based its judgment on what it had found to be falsified evidence to wit the overtime schedule; the respondent will not suffer any prejudice that cannot be compensated with costs if the court allows this application, extends time and treats the notice of appeal dated 11th May 2026 as duly filed and served. 4.In the submissions dated 4th July 2026, learned counsel for the applicant reiterates the grounds in support of the application and contends that the explanation offered constitutes a valid and sufficient reason to justify the court's exercise of discretion in extending time. 5.Counsel further argues that the intended appeal is meritorious and has high prospects of success because it raises a significant question of law concerning the limitation period under section 89 of the Employment Act. It is submitted that the trial court awarded the respondent the sum of Kshs. 544,720.98 in overtime compensation covering approximately 11 years of employment and since the award extends beyond the statutory three-year limitation period prescribed under section 89 the same was made without jurisdiction, since limitation extinguishes the court's authority to entertain such claims. The applicant therefore maintains that the proposed appeal presents a serious and bona fide legal issue deserving consideration by this court. 6.On the question of prejudice, counsel submits that granting the extension will not occasion undue prejudice to the respondent. While acknowledging the respondent's right to enjoy the fruits of her judgment without unnecessary delay, counsel argues that any inconvenience can adequately be compensated by an award of costs. 7.To support its position, the applicant relies on the decision in Dakawou Transporters Limited vs National Land Commission & 3 Others [2021] KECA 414 (KLR), where this court affirmed that its discretion to extend time is broad and unfettered, provided it is exercised judicially and on terms that are just. Counsel urges that the decision recognises the right to a hearing as a cornerstone of the rule of law and submits that this principle should guide the court in determining the present application. 8.In conclusion, counsel urges the court to find that the nine-day delay was brief, satisfactorily explained, and excusable; the intended appeal is meritorious with reasonable prospects of success; and that no prejudice will be suffered by the respondent if the extension is granted. 9.The respondent neither filed a response to the application nor filed submissions. 10.I have considered the application, the affidavit in support and the submissions. The issue for determination is whether to grant an extension of time. Rule 4 of the Act allows the court to exercise its discretion to extend the time limited by the Rules for doing any act authorised or required by the Rules. In Leo Sila Mutiso vs Helen Wangari Mwangi [1999] 2 EA 231, the court set the principles to be applied in the exercise of its discretion in the determination of any application under rule 4 of the Act as follows:“the decision whether or not to extend time is discretional. The court in deciding whether to grant an extension of time takes into account the following matters: first, the length of the delay; second, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.” 11.The judgment sought to be appealed against was delivered on 17th April 2026. Under rule 77(2) of the Court of Appeal Rules, the applicant was required to lodge a notice of appeal within fourteen days, that is, on or before 1st May 2026. The notice of appeal was, however, lodged on 11th May 2026, approximately nine days out of time. 12.The explanation advanced by the applicant is that the delay arose from pressure of work and inadvertence in counsel’s office, resulting in the file being shelved and only rediscovered after the lapse of the prescribed period. Counsel has candidly taken responsibility for the omission and urges the court not to visit counsel's mistake upon the litigant. While mistakes of counsel are not always excusable, the court is enjoined to exercise its discretion judiciously and in a manner that advances substantive justice. In the circumstances of this matter, and considering the relatively short delay involved, I am satisfied that the explanation tendered is plausible and sufficient. 13.On the merits of the intended appeal, the applicant contends that the learned Judge erred in awarding overtime compensation for a period extending beyond the statutory limitation period under section 90 of the Employment Act. Without making any definitive findings at this stage, I am satisfied that the intended appeal is not frivolous and raises arguable issues deserving consideration by this court. 14.As regards prejudice, the respondent neither filed a response to the application nor submissions opposing it. In any event, any prejudice likely to be suffered by the respondent can adequately be compensated by an award of costs. Taking into account the principles set out in Leo Sila Mutiso vs Helen Wangari Mwangi [1999] 2 EA 231, namely the length of delay, the explanation for the delay, the arguability of the intended appeal, and the degree of prejudice to the respondent, I am persuaded that this is a proper case for the exercise of this court’s discretion in favour of the applicant. 15.Accordingly, the notice of motion dated 22nd June 2026 is hereby allowed. The application having not been opposed, there will be no orders on costs. DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF JULY, 2026.ALI-ARONI……………………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR