https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1392

KUDHEIHA Workers Union v Aga Khan University Hospital (Civil Application E290 of 2026) [2026] KECA 1392 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KECA 1392 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E290 of 2026 LK Kimaru, JA July 13, 2026 Between KUDHEIHA Workers Union Applicant and Aga Khan University Hospital Respondent (Being an application for extension of time to file the record of appeal out of time from the Judgment of the Employment and Labour Relations Court of Kenya at Nairobi (B. Onga’ya, J.) dated 21st February, 2026 in ELRC Cause No. 51 of 2018) Ruling 1.The applicant was aggrieved by the Judgment of the Employment and Labour Relations Court (ELRC) rendered on 21st February, 2025. It immediately lodged the notice of appeal intimating its intention to appeal against the said decision to this Court. The notice of appeal was lodged on 21st February, 2025. Service of the notice of appeal was effected on the same day. The certified and typed copies of the proceedings were availed to the applicant in December, 2025. By that time, the sixty (60) days period upon which the record of appeal was required to be filed had expired hence this application made under Rule 4 of the Court of Appeal Rules. 2.The applicant explained that it was prevented from filing the record of appeal in time due to the fact that the certified copies of the proceedings were not availed to it in time. It states that it has a meritorious appeal which it should be allowed to ventilate before this Court. The applicant contended that the respondent will not suffer any prejudice if the Court were to exercise its discretion in its favour. The application is supported by the annexed affidavit of Albert Njou Obed, the Secretary General of the Applicant. 3.The application is opposed. Valentine Achungo, the respondent’s head of legal swore a replying affidavit in opposition to the application. She deponed that the dispute between the applicant and the respondent had a chequered history having started in 2015 after the respondent declared some redundancies affecting some members of the applicant. The applicant filed suit before the ELRC, which the said Court, after hearing the case, found in favour of the applicant but on appeal, this Court found in the respondent’s favour. The applicant subsequently filed a latter suit in 2018 which was dismissed by the ELRC. The respondent deponed that the decision by the ELRC on redundancies made by the respondent was sound in law. it is that decision that the applicant wishes to appeal to this Court. The respondent is not convinced the intended appeal is arguable. 4.The respondent deponed that it was not served with the notice of appeal. Neither was it served with the letter bespeaking copies of the proceedings. The respondent deponed that the applicant had been guilty of unexplained delay and also was not truthful with the court as to the reasons for delay. The respondent pointed out that the ELRC informed the applicant the availability of the duly typed and certified copies of the proceedings on 22nd July, 2025. No reason had been advanced why it took the applicant upto December 2025 to collect the proceedings. The respondent urged the Court to dismiss the application with costs. 5.Both the applicant and the respondent filed written submissions in support of their respective opposing positions. Both appreciated that in considering the present application, this Court, under Rule 4 of the Court of Appeal Rules has unfettered discretion. However, this discretion is exercised with certain settled principles in mind. They include the length of delay, the reason for the delay, thirdly (possible) the chances of the appeal succeeding if the application is granted, and fourthly, the decree of prejudice to the respondent if the application is granted. (see Thuita Mwangi v. Kenya Airways Ltd [2003] KECA 201 [KLR)). 6.In the present application, the applicant filed the notice of appeal in time. The applicant stated that it served the said notice of appeal in time. The respondent disputes service. However, that issue is not before the Court today. It will be determined in another forum. The applicant made an application before the ELRC to be supplied with certified typed copies of the proceedings for appeal purposes. The letter bespeaking copies of the proceedings was not copied to the respondent. The applicant cannot therefore benefit from the proviso of Rule 84(2) of the Court of Appeal Rules. It is common ground that applicant was informed by the ELRC that the proceedings were ready for collection on 22nd July, 2025. The applicant did not file this application until 15th May, 2026. That is a period of ten (10) months. The applicant has not sufficiently and convincingly explained this delay. Matters were not helped by the fact that the applicant concealed from the court the fact that the said proceedings were ready for collection from the court as of 22nd July, 2025. This concealment works against the applicant. It is trite that whoever requires the exercise of discretion by the Court, they must be candid and put all the relevant facts on deck. When such facts are concealed, equity works against such applicant. The conscious of the Court cannot allow itself to exercise discretion where it has been duped or misled. The applicant has not persuaded the Court that it is entitled to the exercise of discretion by the Court. 7.The application lacks merit and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF JULY, 2026.L. KIMARU........................JUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR.