https://new.kenyalaw.org/akn/ke/judgment/keca/2026/922

Nyatigi v Kwale International Sugar Company (Civil Application E120 of 2024) [2026] KECA 922 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 922 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Application E120 of 2024 AK Murgor, JA May 15, 2026 Between Godfrey Juma Nyatigi Applicant and Kwale International Sugar Company Respondent (An application for leave to file an appeal out of time against the decision of the Employment and Labour Relations Court at Mombasa (M. Mbaru, J.) rendered on 11thApril 2024 in ELRCA No. E099 of 2023 Cause E099 of 2023 ) Ruling 1.The Applicant’s Notice of Motion dated 29th October 2024 is brought pursuant to Article 159 of the Constitution of Kenya 2010, sections 3, 3A and 3B of the Appellate Jurisdiction Act, Rules 4, 33, 41(1)(b), 43, 44, 45, 49 and 55 of the Court of Appeal Rules 2022 seeking orders;“ a)That the Honourable Court be pleased to consolidated this present application with Mombasa Court of Appeal Civil Application No. E089 Of 2024 Kwale International Sugar Company Limited-Vs-Godfrey Juma Nyatigi, being an application to strike out the notice of appeal. b.That this Court be pleased to grant leave to the applicant to file appeal out of time.c.That this Court be pleased to extend time for filing the appeal against Mombasa Employment and Labour Relations Court Case No E099 Of 2023.d.That upon granting prayers 3 and 4 above, this Court be pleased to provide timelines for filing the application and appeal.e.That cost of the application be in the cause.” 2.The Applicant’s Motion is brought on grounds that; the learned Judge in Mombasa ELRC No. E099 of 2023 Godfrey Juma Nyatigi vs Kwale International Sugar Company delivered a Judgment on 11th April 2024 in favour of the Respondent; that being dissatisfied with the Judgment, the Applicant preferred an appeal to this Court; that they applied for certified copies of proceedings and the Judgment to enable them prepare a record of appeal; that a Notice of appeal was filed on the 22nd April 2024, and that it was not until the 26th July 2024 that the Notice was lodged, scanned and uploaded on the system, and thereafter forwarded to the Respondent’s vide their email address. 3.It was contended that the proceedings and Judgment were ready for collection, and were certified on 8th July 2024; that thereafter, the Record of appeal was prepared and filed on 16th July 2024 and an invoice issued for payment; that whilst making payments, a notification was received informing them that the payment was declined because the format used was wrong. It was asserted that the application has been brought without delay, and no prejudice will be occasioned to the Respondent should the application be allowed. 4.The Application is supported by the affidavit of Philip W. Odhiambo counsel for the Applicant in which the grounds in the application were reiterated, save to add that although the proceedings and Judgment were ready for collection, they were only certified on 8th July 2024, after which they were uploaded onto the CTS for collection. Thereafter, the Record of appeal was prepared and loaded onto the system on 16th July 2024 for assessment, and an invoice was generated for payment. However, when attempts to make payment were made, the payment was declined with a notification that the format used was wrong, thereby delaying the filing of the Record within the required timelines and occasioning a delay. It was therefore deposed that the delay that occurred due to filing challenges which remained unresolved, despite efforts was the reason for failure by the Applicant to comply within the prescribed timelines. It was also deposed that the intended appeal raises substantial questions of law touching on the Applicant’s rights. 5.The application was opposed by a Replying Affidavit sworn by Benson Nzuka, the Head of Legal Department of the Respondent company, who deposed that the application is an afterthought, and an abuse of the court process, intended to circumvent the Respondent’s pending application in Civil Application No. E089 of 2024 which seeks to strike out the Notice of Appeal for want of service within the prescribed timelines under Rule 84 of the Court of Appeal Rules; that the Applicant had omitted material facts, particularly that the Notice of Appeal dated 22nd April 2024 was served on 17th July 2024, long after the lapse of the seven (7) days required under Rule 79 of the Court of Appeal Rules; that the Notice of Appeal served was fatally defective as it was neither endorsed with a filing date, signed, nor sealed or stamped by the Deputy Registrar to authenticate its lodging; that upon being served with the defective Notice of Appeal, the Respondent filed its application dated 22nd July 2024 seeking to strike out the Notice. 6.The Respondent further contended that the Applicant had not demonstrated any just cause for failure to file the Record of Appeal from 8th July 2024 when they were notified that proceedings were ready. 7.Additionally, the Respondent deposed that the present application does not seek extension of time in respect of the late service of the Notice of Appeal purportedly served on 26th July 2024; and that further, the Applicant has neither sought leave to file the Record of Appeal out of time nor given satisfactory reasons for failure to comply with the stipulated timelines. 8.Both parties filed written submissions. When the application came up for hearing on a virtual platform, learned counsel Mr. Odhiambo appeared for the Applicant, but there was no appearance for the Respondent’s counsel though served with the hearing notice. 9.In their written submissions, counsel for the Applicant submitted that the application dated 29th October 2024 seeks leave for extension of time to file an appeal against the Judgment delivered on 11th April 2024. Counsel submitted that the Applicant filed a Notice of Appeal on 22nd April 2024 and paid the requisite filing fees of Kshs. 450 but had to await the signing, stamping and uploading of the Notice by the Deputy Registrar. 10.With respect to the Record, counsel submitted that the proceedings were certified on 8th July 2024 and the Record of appeal prepared and uploaded on 16th July 2024, but payment of the generated invoices failed due to technical hitches within the Court system. It was argued that the resultant delay of approximately 19 days was not inordinate, and that the Respondent has not demonstrated any prejudice. 11.Concerning the delay in filing the Notice of appeal, counsel submitted that in a Ruling of this Court (Nyamweya, Laibuta & Ngenye, JJA) dated 24th November 2025, Civil Application No. E089 Of 2024 in respect of the Respondent’s motion dated 22nd April 2024 seeking to strike out the Notice of appeal, was dismissed upon the Court finding that the Notice of appeal was filed and served within the stipulated timelines. 12.Counsel urged the Court to exercise its discretion under Rule 4 and Article 159 of the Constitution and relied on the case of Sokoro Savings and Credit Co- operative Society Ltd vs Mwamburi (Civil Application E032 of 2022) [2023] KECA 381 (KLR), where the Court allowed a similar application upon finding the delay not inordinate. 1.3In their written submissions, counsel for the Respondent submitted that whereas consolidation of the present application with Civil Application No. E089 of 2024 may be allowed for purposes of saving judicial time, the prayer for extension of time is vehemently opposed. Counsel submitted that rules of procedure are handmaids of justice and must be obeyed. The case of Chelashaw vs Attorney General & Another [2005] 1 EA 33, was relied upon to underscore the necessity of compliance with procedural rules for orderly administration of justice. It was also submitted that the Notice of Appeal dated 22nd April 2024 was served on 17th July 2024, well outside the seven days prescribed under Rule 79(1) of the Rules, rendering it fatally defective, and that the Applicant has not sought leave to serve the Notice of Appeal out of time and has taken no remedial action to cure the defect, despite the pending application to strike it out. 14.The Respondent relied on the case of Mwawasi vs Shako (Civil Application E053 of 2023) [2024] KECA 632 (KLR), where this Court held that a party who falls afoul of procedural requirements must promptly seek remedial measures rather than wait to be confronted with an application to strike out. It was also submitted that the Applicant has been indolent, and has not demonstrated good reason for failure to file the record of appeal despite proceedings being ready on 8th July 2024. 15.I have considered the motion, the replies and the parties’ submissions. Before proceeding to consider the application for extension of time to file the Record of appeal, it is necessary to address the issue raised on consolidation of the instant application with the Respondent’s Civil Application No. E089 of 2024. The Record shows that in a Ruling of this Court (Nyamweya, Laibuta & Ngenye, JJA) dated 24th November 2025, Civil Application No. E089 of 2024 in respect of the Respondent’s motion dated 22nd April 2024 seeking to strike out the Notice of appeal was dismissed upon the Court finding that the Notice of appeal was filed and served within the stipulated timelines. Hence, the question of consolidation of the applications and the validity of the Notice of appeal having been disposed of, are not before this Court for determination. 16.Turning to the application before me, the Applicant seeks time to be extended to lodge the Record of appeal. 17.Under Rule 4 of the Court of Appeal Rules this Court may exercise its discretion to extend time limited by the Rules. It specifies that:“The court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 18.Pursuant to Rule 4, this Court has developed guiding principles to be applied in the exercise of this discretion so as to foster the just determination of each case. 19.The case of Leo Sila Mutiso vs Hellen Wangari Mwangi [1999] 2 EA 231 which is the locus classicus, laid down the parameters as follows:“It is now well settled that the decision whether or not to extend the 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 degree of prejudice to the respondent if the application is granted.” 20.The case Muringa Company Ltd vs Archdiocese of Nairobi Registered Trustees, Civil Application No.190 of 2019 observed that:“Some of the considerations, which are by no means exhaustive, in an application for extension of time include the length of the delay involved, the reason or reasons for the delay, the possible prejudice, if any, that each party stands to suffer, the conduct of the parties, the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal, the need to protect a party’s opportunity to fully agitate its dispute, against the need to ensure timely resolution of disputes; the public interest issues implicated in the appeal or intended appeal; and whether, prima facie, the intended appeal has chances of success or is a mere frivolity.” 21.From the material before this Court, it is not in dispute that the Judgment sought to be appealed from was delivered on 11th April 2024 and that a Notice of Appeal was lodged on 22nd April 2024. Thereafter, the proceedings and Judgment were certified on 8th July 2024; that thereafter, the Record of appeal was prepared and filed on 16th July 2024 and an invoice issued for payment; that whilst making payments, a notification was received informing them that the payment was declined because the format used was wrong. It was asserted that the application has been brought without delay, and no prejudice will be occasioned to the Respondent should the application be allowed. 22.The delay complained of relates to the period between the time the proceedings were certified on 8th July 2024 and the time the Record of appeal ought to have been filed. The explanation given by the Applicant is that although the Record of appeal was prepared and uploaded for assessment, payment could not be processed due to system-generated invoice errors. 2.3Taking the unforeseeable occurrences in the process of filing into account, and given that the length of the delay was not inordinate, I am satisfied that the Applicant has provided a sufficient explanation for the delay. 2.4With regard to whether the appeal has any chances of success, the Applicant asserts that the intended appeal raises substantial questions of law touching on his rights, and that in any event, the Respondent would not suffer any prejudice were time to be extended to file the Record of appeal. I am of the view that in the absence of demonstrable prejudice to the Respondent, the Applicant should be provided an opportunity to ventilate his case on appeal. 25.In sum, the Notice of motion dated 29th October 2024 is merited. The Applicant having satisfied the requirements of Rule 4, I exercise my discretion to extend time for lodging of the Record of appeal. In so finding, I make the following orders:i.That time is extended for lodging the Memorandum and Record of appeal;ii.That the Memorandum and Record of appeal to be lodged and served within 30 days of this Court’s order.iii.Costs in the appeal.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.A.K. MURGOR……………………….JUDGE OF APPEALI certify that this is the true copy of the originalsigned DEPUTY REGISTRAR