https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1401

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI ELRC MISCELLANEOUS APPLICATION NO. E148 OF 2025 HENRY KARANJA………………………........................................................APPELLANT -VERSUS- DAVID KANGETHE T/A IMPRESS COMMUNICATIONS PRINTERS & STATIONERY………............................................................. RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno *C/ A Otieno* RULING 1. The applicant filed an application dated 29th May 2025 seeking for the following Order— 1. THAT this Honourable court be pleased to grant the Applicant leave to appeal out of time against the judgment delivered by Hon. B.M.Cheloti on 7th November 2023. 2. THAT the costs of this application be provided for. 2. Grounds of the application - a) Judgment in the trial court in Milimani ELRC Cause No. 1694 of 2018 was initially scheduled to be delivered on 27th October 2023 however, on the said date, the trial court was indisposed and the judgment was not delivered; b) The matter was subsequently rescheduled to 7th November 2023 whereof the same was not delivered and a subsequent date of 31st January 2024 was issued, when judgment was eventually delivered; c) Dissatisfied with the judgement of the trial court, the Applicant filed his Memorandum of Appeal in High Court at Milimani Civil Appeal No. E034 OF 2024, Henry Karanja -vs- David Kangethe T/A Impress Communications Printers & Stationery on 20th February 2024. In doing so, he relied on 31st January 2024 as the date of delivery of judgement in calculating the time for appeal, and therefore the Appeal was filed within the 30-day appeal period provided under Section 79G of the Civil Procedure Act; d) Subsequently, the Respondent raised a Preliminary Objection dated 10th January 2025 claiming that the appeal was filed out of time, citing the 7th November 2023 date as the judgment date whereof the same was erroneously retained on the physical copy of the Judgment and subsequent decree; e) On 23rd May 2025 in Milimani Civil Appeal No. E034 OF 2024, Hon. Lady Justice Kelly Jemimah issued a Ruling essentially dismissing the Appeal for being filed out of time therefore necessitating this Application. f) From the foregoing, the delay in filing of the appeal was not due to any fault and/or negligence on the part of the Applicant but due to the uncertainty of the judgement date. g) The Applicant has a good and arguable appeal with high chances of success, and unless leave is granted, they shall suffer irreparable loss and prejudice; h) The delay in filing the appeal, is neither inordinate nor deliberate but was occasioned by circumstances beyond the Applicant's control; i) That it is in the interests of justice and fairness that this Honourable Court exercises its discretion in favour of the Applicant. 1. The application was supported by affidavit sworn by the applicant on the 29th May 2025 where he annexed extracts of the CTS record, a copy of the memorandum of appeal. 2. In response to the application the respondent filed a Notice of Preliminary Objection dated 26th August 2025 which was determined and dismissed vide ruling of the court dated 23rd January 2026. There was no further response. Decision 1. Rule 12 of the Employment and Labour Relations Court (Procedure) Rules 2024 provides time for filing an appeal to the court as follows:- ‘*12. (1) Where a written law provides for an appeal to the Court, an appellant shall file a* *memorandum of appeal with the Court within the time specified under that written law.* *(2) Where an appeal is from a magistrate’s court or where no period of appeal is specified* *in the written law referred to in sub-rule (1), the appeal shall be filed within thirty days from* *the date the decision is delivered.’’* 1. The judgment of the Trial Magistrate Court was delivered on the 31st January 2024. The application was filed pursuant to the striking out of the filing of an appeal out of time on the 20th February 2024. According to Rule 12(2) of the Court(supra), the appeal ought to have been filed within 30 days. The appeal was struck out by the court vide ruling of 23rd May 2025. The applicant then filed instant application seeking leave of the court to extent time for filing the appeal. 2. The applicant states the delay was not an inordinate one and stated the delay was occasioned by the uncertainty of delivery dates issued by the court. Rule 18 of Employment and Labour Relations Court (Procedure) Rules 2024 provides for extension of time to file appeal as follows:-‘ *18. The Court may, if circumstances justify, extend the time prescribed for the filing of an appeal or any document relating to an appeal.’’* 3. The principles for extension of time for filing appeals were stated by the Supreme Court Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR where it upheld its earlier decision in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) as follows:- *‘29] As regards extension of time, this Court has already laid down certain guiding principles. In the Nick Salat case, it was thus held:* *“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon* *the applicant to explain the reasons for delay in making the application for extension and* *whether there are any extenuating circumstances that can enable the Court to exercise its* *discretion in favour of the applicant.* *“… we derive the following as the underlying principles that a Court should consider in* *exercising such discretion:* *1. extension of time is not a right of a party. It is an equitable remedy that is only* *available to a deserving party, at the discretion of the Court;* *2. a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;* *3. whether the Court should exercise the discretion to extend time, is a consideration to be* *made on a case- to- case basis;* *4. where there is a reasonable [cause] for the delay, [the same should be expressed] to the* *satisfaction of the Court;* *5. whether there will be any prejudice suffered by the respondents, if extension is granted;* *6. whether the application has been brought without undue delay; and 7. whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied].’’* The court upholds the Salat decision to apply in the instant application. 1. The Applicant stated the delay was caused by uncertainty of judgment dates. Indeed, the date for delivery of the decision kept on changing. The Court is satisfied that the delay was not inordinate and was explained. 2. On whether there is arguable appeal- The proposed grounds of appeal disclosed in the draft memorandum of appeal were – 1. The Learned Magistrate erred in both law and fact by failing to substantially consider the Appellant's evidence that he was an employee of the Respondent. 2. The Learned Magistrate erred in both law and fact by failing to objectively consider the evidence on the Appellant's termination. 3. The Learned Magistrate erred in both law and fact by failing to fairly and objectively evaluate the evidence before the court and therefore placing reliance on the Respondent's assertions that were riddled with inconsistencies and not backed by evidence to reach an unjust finding. 4. The Learned Magistrate erred in both law and fact in dismissing the case and holding that the Appellant had absconded his duty. 5. The Learned Magistrate erred in both law and fact by misconstruing the legal principles underpinning the Law of Employment in Kenya and the Employment Act 2007. 3. Having found that the applicant proved that the delay was justified and further being satisfied that the appeal raised a triable issue I allow the application and extent time for the applicant to file their appeal out of time. I find that the prejudice to the respondent is addressed by costs. The costs of the application is thus awarded to the respondent. 4. It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicant : Ms Mwangi holding brief Maingi Respondent: Ms Kimani holding brief Ms Gathoni