[2021] KECA 533 (KLR)

IN THE COURT OF APPEAL

AT NAKURU

[CORAM: F. SICHALE, JA IN CHAMBERS]

CIVIL APPLICATION NO. E10 OF 2021

JOHN WACHIRA GIKONYO & 9 OTHERS...................................APPELLANTS

VERSUS

COUNTY GOVERNMENT OF LAIKIPIA......................................RESPONDENT

(Being an application for extension of time to file a memorandum and record of appeal from the judgment of Mbaru J delivered on 6thDecember 2018. )

IN

(Nakuru ELRC Cause No. 96 of 2014)

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RULING OF THE COURT

Before me is a motion dated 5th February 2021, filed by John WachiraGikonyo & 9 others, (The applicants)brought under the provisions ofRule 4 ofthe Court of Appeal Rules 2010, and Sections 3A and 3B of the AppellateJurisdiction Actin which they seek the following orders:

“1. Spent.

2. THAT this Honourable Court be pleased to extend time within which the applicant ought to have filed the memorandum and record of appeal.

3. THAT the memorandum of appeal and the record of appeal be filed within 60 days from the date of this order.

4. THAT the costs and incidental to this application abide the result of the said appeal.”

The motion is supported on the grounds on the face of the motion and anaffidavit sworn byJohn Wachira Gikonyowho deponedinter alia,that theapplicants were out of time for filing memorandum and record of appeal whichwas occasioned by the effects of the Covid 19 pandemic and that out of the same,the applicants were unable to personally engage an advocate and share thedocuments. He further deponed that there was a need to mitigate the delay byhaving the instant application heard at the earliest to pave way for filing thememorandum and record of appeal and that the applicants had a good andarguable appeal with high chances of success.

The application was opposed vide a replying affidavit dated23rdFebruary2021byJoseph Mwangi,learned counsel who has the conduct of this matter onbehalf of the respondent who deponed that the application was incompetent andbad in law as the applicants never filed any notice of appeal within 14 days ofdelivery of judgment as provided under Rule 75 (2) of the Rules and that as suchthe jurisdiction of this court had not been properly invoked and that judgmentin this matter was delivered on6thDecember, 2018and the delay in lodging thenotice of appeal on time had not been explained. He further deposed that thecertificate of delay contained on page 12 of the application could not be reliedupon as the same was never served on the respondent and that the challengesoccasioned by onset of Covid 19 could not be advanced as reasons for failing tofile the notice of appeal on time as the pandemic started affecting courtoperations in Kenya inMarch 2020, while the judgment herein was delivered on6thDecember, 2018, a delay of 2 years which had not been explained.

It was submitted for the applicants that they were long serving employeesof the respondent as demonstrated by their employment contracts and that theywere retired pre-maturely before attainment of mandatory age of 60 years andthat the retirement contravened the provisions of the CBA as it did not considerpending leaves and leave allowances that were due. It was further submitted thatthe legitimate expectations of the applicants to their graceful retirement uponlong years of service were frustrated and that the learned judge appreciated andfound fault with the respondent for not issuing the 6 months’ notice as stipulatedin the CBA but failed to declare those actions of the respondent in terminatingthe applicants’ employment as unlawful and failed to condemn the respondentto pay damages.

On the other hand, the respondent reiterated the contents of the replyingaffidavit in their written submissions.

I have carefully considered the motion, the grounds thereof, thesupporting affidavit, the replying affidavit and the rival submissions by theparties.

The applicants motion is brought,underRule 4of this Court’s Rules. Thesaid Rule provides:

“4.

Extension of time

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.”

The principles upon which this court exercises its discretion under Rule 4

are firmly settled. The court has unfettered discretion whether to extend time ornot. However, in exercising its discretion the court should do so judiciously, andin accordance with the principles set out inLeo Sila Mutiso V. Rose HellenWangari Mwangi– Civil Application No. Nai 251 of 1997 where the court stated;

“It is now settled that the decision whether to extend the time for appealing is essentially discretionary. It is also well stated 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 reasons 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.”

In the instant case it is not in dispute that the impugned judgment wasdelivered on6thDecember, 2018, whereas the instant application was filed5thFebruary, 2021, a period of over two years from the date of the judgment. Theapplicants contend that the delay in filing the appeal was occasioned by theeffects of Covid 19 pandemic. A certificate of delay issued by the deputy registrarof the Employment and Labour Relations Court dated3rdSeptember, 2019,indicates that court fees was paid for and certified copies of proceedings werecollected on27thAugust, 2019, which was way before the onset of Covid 19pandemic. Similarly, the applicants have not demonstrated what actions theytook from27thAugust, 2019toMarch 2020when Covid 19 struck (a period ofover 6 months from the date of collection of the proceedings. The contention bythe applicants that due to Covid 19 they were unable to personally engage anadvocate and share the documents is not supported by any evidence.

In the end, I find that the applicants have not demonstrated the existenceof the principles for consideration in the exercise of my unfettered discretion aslaid out inLeo Sila Mutiso case(supra), to extend time and therefore decline toexercise my discretion to grant the instant application and accordingly dismiss itwith no order as to costs.

DATED AND DELIVERED AT NAIROBI, THIS 4TH DAY OF JUNE, 2021.

F. SICHALE

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JUDGE OF APPEAL

I certify that this is atrue copy of the original.

Signed

DEPUTY REGISTRAR