Mangi v AA Baysufu (Miscellaneous Application E015 of 2025) [2026] KEELRC 1794 (KLR) (24 June 2026) (Ruling)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MALINDI. MISC. APPLICATION NO. E 015 OF 2025 KATANA KAZUNGU MANGI………………………..…APPLICANT VERSUS A. A. BAYSUFU………………………………………. RESPONDENT **RULING** 1. By the Application dated 22nd May 2025, the Applicant herein sought leave of this Court to file an appeal against the Judgment of Hon. J.M. Kituku delivered on 12th April 2024 in Kilifi MCERLC E 048 OF 2021; Katana Kazungu Mangi vs A.A. Bayusu & Sons Limited. 1. From the grounds set out on the face of the Application and those in the supporting affidavit sworn by the Applicant, the following grounds appear to this Court to be the principal grounds on which the Application is anchored; 2. That the trial court fixed delivery of its judgment in the above-stated suit for 26th February 2024. On this date, the applicant’s counsel and the respondent’s counsel attended court to take the judgment, but unfortunately, the learned trial magistrate did not sit. 3. Thereafter, both counsel on record continued to call each other to ascertain whether the judgment had been delivered, and wrote to the trial court on a number of occasions seeking to know whether the judgment had been delivered. They further followed up with the registry on various dates. These efforts did not yield any fruit. 4. On 8th March 2024, the Respondent’s counsel on record wrote to the court enquiring about the date of the judgment; however, the judgment was not issued to the parties. 5. On 24th May 2024, the Applicant’s Counsel wrote a letter to the trial court to inquire whether the judgment had been delivered, and if so, a certified copy thereof be supplied to them. 6. On 15th July 2024, Counsel for the Applicant wrote again, requesting that the matter be slated for mention for directions by the learned trial Magistrate, but the registry informed them that the file was unavailable in the registry as it was still with the learned Magistrate. 7. On 4th September 2024, the Respondent’s Counsel wrote a letter to the Court Administrator urging that the delivery of the judgment be fast-tracked. The letter did not elicit any response or direction from the trial Court. 8. On 6th May 2025, the Applicant’s Counsel visited the trial Court’s registry, armed with copies of all documents pertaining to the suit, and suggested that a skeleton file be opened to enable the matter to move forward, only to be informed that the Judgment had been delivered on 12th April 2024. 9. With the information, the Applicant’s Counsel was prompted to enter the system to check on the events relating to the suit, only to discover that the last entry indicated that the suit was last in court on 28th November 2023. 10. On 9th May 2025, the Applicant’s Counsel wrote to the trial Court requesting for certified typed copies of the proceedings and judgment of the trial court. 11. In the circumstances, the failure to lodge an appeal within time was not deliberate. Further, the justice of this matter demands that the application herein be granted. 12. The Respondent opposed the application by filing a replying affidavit, sworn by Julius Arisi, its Senior Human Resources Manager, on 30th September 2025. He stated that the judgment in the lower court was initially scheduled for 26th February 2024, but the trial court did not sit. However, the judgment was ultimately delivered on 12th April 2024. 13. It was argued that no explanation has been provided by the Applicant for failing to file the appeal or an application for leave between 15th July 2024 and 6th May 2025, despite the Applicant’s counsel visiting the court registry during that period. 14. It was further stated that even after learning of the judgment, the Applicant did not act promptly. It took him a full 17 days to file the instant application. There is no explanation for this delay. 15. In the Judgment, the Applicant was awarded a sum of Kshs. 122,090 plus interest at court rates from the date of judgment till full payment, and costs of the suit. Though the Respondent was aggrieved by the decision, it opted not to appeal against the same. **Analysis and Determination.** 1. I have carefully considered the Applicant’s application, the grounds upon which it is premised, the Respondent’s replying affidavit, and the submissions filed herein, and a single issue emerges for determination- whether the Applicant’s application is meritorious. 2. It is now trite law that the grant of leave to file an appeal out of time is not a matter of right but one that lies within the sound discretion of the court. The discretion is a judicial one, exercised judiciously upon settled legal principles and the particular circumstances of each case. It must never be exercised capriciously, whimsically, arbitrarily, or on the basis of sympathy. Rather, the Applicant must place before the court sufficient and cogent material to justify the invocation of the court’s jurisdiction, demonstrating that the interest of justice warrants the grant of the leave sought. 3. The case of **Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others [2023] KECA 381[KLR],** the Court of Appeal gave guidelines on the principles considered in an application **for** extension **of** time, thus; 4. 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; 5. A party who seeks for extension of time has a burden of laying a basis to the satisfaction of the court; 6. Whether the court should exercise the discretion to extend time is a consideration to be made on a case to case basis. 7. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; 8. Whether there will be prejudice suffered by the Respondents if the extension is granted; 9. Whether the application has been brought without undue delay; and 10. Whether, in certain cases, like election petitions, public interest should be a consideration for extending time. 11. A careful consideration of the Applicant’s application and the grounds upon which it is premised reveals one critical fact, not in dispute: the lower Court’s judgment was not delivered on the date it was initially slated for delivery, and when it was eventually delivered, it was without prior or post-delivery notification to the parties. 12. The Applicant has, in my view, clearly and unambiguously demonstrated that he is not a party who went to sleep when the judgment was not delivered on that date, when it was first slated to be delivered. The Respondent’s replying affidavit does not in any sufficient manner rebut the Applicant’s assertion on the frantic efforts it made to pursue delivery of the judgment or information, whether the judgment had been delivered. The Respondent does not deny that it was equally pursuing the same information and/or action from the trial court, and that, in response to both their efforts, the trial court was unresponsive. 13. I am not persuaded that when the Applicant was eventually informed of the existence of the judgment, he did not act promptly. In my view, the instant application was filed timeously, without undue delay. 14. It would be contrary to public policy and the fundamental principles of justice to deny a party leave to appeal out of time where the delay is directly attributable to the failure to notify the party of the delivery of its decision, either by issuing prior notice of the delivery date or by communicating the decision after it had been rendered. The right of appeal is a substantive legal right. And its enjoyment should not be defeated by an omission on the part of the court or its administrative machinery. 15. A litigant ought not to be penalised for a default that is neither deliberate nor attributable to his own indolence. To hold otherwise would amount to shutting the doors of justice against a party through no fault of his own, thereby undermining the constitutional imperatives of access to justice and the right to a fair hearing. In such circumstances, the court’s discretionary jurisdiction to extend time should ordinarily be exercised in favour of preserving, rather than extinguishing, the right of appeal, provided that the application is made promptly upon the party becoming aware of the decision and no undue prejudice will be occasioned to the opposing party. 16. Having said the foregoing, I come to the conclusion that the justice of this demand is that the Applicant’s application for extension of time be granted. 17. Accordingly, the Applicant’s application is hereby allowed, and he is granted leave of 14 days to file an appeal against the decision mentioned above. 18. Orders accordingly. Read, Signed and Delivered this 24th Day of June 2026. **OCHARO KEBIRA** **JUDGE.**