https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1501

Githengi v Isat Africa Kenya Limited (Employment and Labour Relations Cause E530 of 2019) [2026] KEELRC 1501 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1501 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E530 of 2019 HS Wasilwa, J June 2, 2026 Between Jane Nduta Githengi Claimant and Isat Africa Kenya Limited Respondent Ruling 1.The Claimant/ Applicant filed a Notice of Motion application dated 18th February 2026 seeking orders: -1.Spent2.That this Honorable court be pleased to grant leave to the Applicant herein to file Notice of Appeal out of time by enlarging the time within which to file the same as against the judgment delivered on 21st November,2025.3.That costs of this application be provided for. Claimant/Applicant’s Case 2.The Applicant’s case is that this Court delivered judgment on 21st November, 2025 dismissing her claim with no orders as to costs. Being dissatisfied with the said judgment, she intends to appeal against it but the time for filing the Notice of Appeal has lapsed therefore necessitating the instant application. 3.The Applicant states that the failure to lodge the Notice of Appeal within time was occasioned by the indisposition of counsel between mid-November, 2025 and mid-February, 2026 while on leave under Section 29 of the Employment Act, which led to a breakdown in communication that ought not to be visited upon her. 4.She further avers that due to the vicissitudes of pregnancy and loss, which necessitated compassionate leave even at the time judgment was delivered, Counsel was unable to give instructions or take steps towards lodging the Notice of Appeal within time. 5.She contends that the psychological turmoil arising therefrom affected Counsel’s ability to actively pursue the matter and communicate instructions relating to the intended appeal. 6.The Applicant maintains that the delay was neither deliberate nor inordinate and that her advocate has candidly explained the reasons for the delay. She avers that upon regaining the ability to act, Counsel moved to Court without unreasonable delay and took steps to file the present application within the shortest time possible. 7.She further contends that the failure to lodge the Notice of Appeal within time was neither deliberate nor intentional but arose from counsel’s absence while on leave and by the time counsel resumed office, time for filing had already lapsed. The Applicant therefore beseeches the Court to enlarge time and grant leave to file the Notice of Appeal out of time upon such terms as the Court may deem fit. 8.It is the Applicant’s case that the application has been brought in good faith with the intention of affording her an opportunity to be heard on appeal and that the mistake of counsel ought not to be visited upon her. 9.The Applicant avers that the intended appeal has high chances of success on grounds that the Court erred in law and fact in failing to find that there was no justification for the redundancy as contemplated under Section 40(1) of the Employment Act. She also states that the Court failed to find that the notice of intended redundancy did not disclose the reasons and extent of the redundancy. 10.She asserts that the Court erred in failing to find that there was no selection criteria applied in the intended redundancy process and that she was not involved in any consultations prior to the redundancy. The Court further failed to appreciate that she had only been temporarily relocated to Malawi and was not holding the substantive position of Accountant Malawi. 11.The Applicant avers that the intended appeal can only be ventilated through the grant of the orders sought herein and that unless leave is granted, she will be denied the opportunity to exercise her right of appeal. 12.She reiterates that the mistake of Counsel should not be visited upon her so as to deny her the opportunity to challenge the decision of the trial Court. 13.It is the Applicant’s case that no prejudice shall be occasioned to the Respondent as the application has been brought without undue delay and in utmost good faith. Respondent’s Case 14.In opposition to the application, the Respondent filed a replying affidavit dated 13th March 2026, sworn by its Legal & Regulatory Manager, Grace Kaari. 15.The Respondent avers that the present application is frivolous, vexatious and an abuse of the court process and ought to be dismissed with costs. 16.It avers that this Court already found that the redundancy process undertaken by the Respondent complied with the provisions of the Employment Act and that the Applicant now seeks to challenge the judgment long after the statutory timelines for lodging a Notice of Appeal had lapsed. 17.The Respondent states that the Applicant seeks extension of time to lodge a Notice of Appeal against the judgment delivered on 21st November, 2025 but has failed to give a reasonable explanation for the delay. 18.It contends that the explanation advanced by the Applicant, namely that counsel handling the matter was away from office between mid-November and mid-February, does not justify the failure to comply with the statutory timelines. The Respondent avers that the firm of advocates on record consists of several advocates who were capable of receiving instructions and acting on behalf of the Applicant during the alleged absence of counsel. 19.The Respondent further asserts that no evidence has been tendered to demonstrate that the law firm lacked other advocates capable of attending to the matter and therefore the delay in filing the present application remains unexplained and inordinate. 20.It is the Respondent’s case that counsel for the Applicant was present in Court on 21st November, 2025 when judgment was delivered and even applied for stay of execution, thus demonstrating awareness of the judgment and the timelines applicable thereafter. 21.The Respondent avers that the application does not satisfy the conditions for extension of time under the applicable rules and has merely been brought to waste precious judicial time. 22.It further avers that it stands to suffer prejudice should the orders sought be granted; and urges the Court to dismiss and/or strike out the application with costs. Claimant/Applicant’s Submissions 23.The It is the Applicant’s submissions that this Court is clothed with jurisdiction to extend time for filing a Notice of Appeal pursuant to Section 7 of the Appellate Jurisdiction Act. Reliance was placed on the said provision which provides that the High Court may extend time for giving notice of intention to appeal notwithstanding that the time for giving such notice has already expired. 24.The Applicant submitted that in the case of Diamond Trust Bank Kenya Limited v Invesco Assurance Company Limited & another [2021] eKLR, Chepkwony J held that Section 7 of the Appellate Jurisdiction Act expressly donates jurisdiction to the High Court to extend time for filing a Notice of Appeal and that to hold otherwise would amount to disregarding a clear provision of the law. 25.The Applicant further submitted that in determining an application for extension of time, the Court ought to consider the factors set out in Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR, where Odek J.A observed that the Court ought to consider the period of delay, the reasons for the delay, the degree of prejudice likely to be suffered by the respondent and whether the matter raises issues of public importance, among other considerations. 26.It was submitted that the present application was filed less than three months after delivery of judgment and that the delay was neither deliberate nor inordinate. The Applicant argued that the delay was occasioned by Counsel’s leave under Section 29 of the Employment Act and further compounded by the vicissitudes of pregnancy and loss which necessitated compassionate leave. The Applicant maintained that Counsel has candidly explained the delay and had taken reasonable steps within the shortest time possible to move the Court. 27.The Applicant submitted that each application for extension of time ought to be determined on its own peculiar circumstances and that no rigid standard can be imposed in measuring delay since explanations for delay vary from case to case. 28.It was further submitted that the right of appeal is a fundamental right which ought not to be unnecessarily curtailed and that the Court should be slow to shut out a litigant from pursuing an appeal. The Applicant argued that the intended appeal has high chances of success since her claim was dismissed on the finding that she had failed to prove her case despite having produced documentary evidence in support thereof. 29.Reliance was placed on the decision in Muchugi Kiragu Vs James Muchugi Kiragu & Another [1998]eKLR where the Court held that:“……..this Court has on several occasions, granted extension of time, on the basis that an intended appeal is an arguable one and that it would therefore, be wrong to shut an applicant out of Court and deny him the right of appeal unless it can fairly be said that his action was in the circumstances, inexcusable and that his opponent was prejudiced by it.” 30.The Applicant submitted that both the claim and counterclaim were dismissed for want of proof and that the Respondent had not demonstrated the prejudice it would suffer if the application was allowed. It was argued that the Respondent would still have the opportunity to challenge the intended appeal and that no undue burden would be occasioned to it by grant of the orders sought. 31.The Applicant further relied on Article 159(2)(d) of the Constitution and the inherent jurisdiction of the Court under the overriding objective principles, urging the Court to administer justice without undue regard to procedural technicalities and to allow the Applicant an opportunity to be heard on appeal. 32.It is the Applicant’s submission that in exercising its discretion, the Court ought to consider the risk of injustice likely to arise if the application is denied as opposed to allowing the Applicant an opportunity to ventilate the intended appeal. She urged the Court to apply the principle of proportionality under the overriding objective and find that no serious prejudice would be suffered by the Respondent if the application is allowed. Respondent’s Submissions 33.The Respondent submitted that the present application arises from the judgment delivered on 21st November, 2025 wherein this Court found that the redundancy process undertaken by the Respondent complied with the provisions of the Employment Act. The Applicant now seeks an equitable remedy of extension of time and therefore must approach the Court with diligence, equity aiding the vigilant and not the indolent. 34.The Respondent submitted that the explanation advanced by the Applicant for the delay in lodging the Notice of Appeal, namely that counsel handling the matter was on leave under Section 29 of the Employment Act, is neither plausible nor satisfactory. 35.It was argued that there was no evidence demonstrating that counsel was indisposed from mid-November as alleged, particularly because counsel attended Court on 21st November, 2025 when judgment was delivered. The Respondent referred the Court to the record showing that the Applicant’s Counsel, Ms. Mathu was present during delivery of judgment. 36.The Respondent further submitted that the firm of advocates on record had other competent advocates capable of receiving instructions and acting within time and that no evidence had been placed before Court to demonstrate that the entire law firm was incapacitated during the period in question. It relied on Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, Nairobi CA No. 255 of 1997 the Court stating:“It is now settled that the decision whether or not to extend time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly, the decree of prejudice to the responded if the application is granted;” 37.The Respondent submitted that while the law does not prescribe a specific period constituting delay, any delay must nonetheless be satisfactorily explained and that a plausible explanation is the basis upon which the Court’s discretion may be exercised. Reliance was further placed on Kitur v Chelagat & another [2023] KECA 1339 (KLR), where the Court held that:“It is therefore upon an applicant to satisfy the court that he has met the conditions for extension of time. In all this, an applicant must remember that the power being a discretionary one must be sought with clean hands. Candor is therefore important in such circumstances.” 38.The Respondent further submitted that the Applicant’s supporting affidavit clearly demonstrates indolence on her part since she admitted that she was unable to give instructions regarding the intended appeal between mid-November, 2025 and February, 2026. It was argued that the Applicant failed to demonstrate any efforts made towards safeguarding her right of appeal or following up the matter within the prescribed timelines. It cited ACL v WKL; Kenya Electricity Transmission Company Ltd (Interested Party) [2024] KECA 387 (KLR), where the Court held:“In this application, I do not find the applicant’s averments plausible. The applicant has not placed before me any proof to show that she was not indolent. There is also no evidence that the applicant was keen on pursuing her intended appeal or that she ever followed up on her instructions to her erstwhile advocates.” 39.It submitted that extension of time is not a right but an equitable remedy available only to a deserving party at the discretion of the Court. The Applicant bears the burden of laying sufficient basis to warrant exercise of the Court’s discretion and that such discretion must be exercised on a case-by-case basis upon satisfactory explanation for the delay. 40.It is the Respondent’s submissions that the Applicant had not demonstrated any arguable grounds of appeal and that this Court ought not to sanction internal inefficiencies within a law firm as a basis for defeating statutory timelines. It was further submitted that the Respondent stands to suffer serious prejudice should the application be allowed. 41.I have examined all the averments and submission of the parties herein. In their pleadings herein the applicant has demonstrated the cause of the delay in not filing her appeal in time. 42.The applicant has indicated that her counsel was on maternity leave during the said period hence the delay. 43.The application sought can be granted by this court discretionary and I exercise my discretion to allow the application in order to prevent any miscarriage of justice in case the applicant has a worthy appeal. 44.The applicant is thus granted leave to file her appeal out of time and in any case not more than 14 days from the date of this ruling. Costs will abide the outcome of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JUNE, 2026.HELLEN WASILWAJUDGE