https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1295

Lewa Wildlife Conservancy Ltd v Kigomo (Civil Application E690 of 2024) [2026] KECA 1295 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KECA 1295 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E690 of 2024 A Ali-Aroni, JA July 6, 2026 Between Lewa Wildlife Conservancy Limited Applicant and Hellen Joan Njeri Kigomo Respondent (Being an application for extension of time to file the record of appeal out of time against the Ruling of the Employment and Labour Relations Court in Nairobi (Marete, J.) delivered on 24th April, 2024 in Misc. Application No. E217 of 2023 Miscellaneous Case E217 of 2023 ) Ruling 1.Before the Court is an application by way of a notice of motion dated 10th December 2024, pursuant to rules 4, 42, 43 & 82 of the Court of Appeal Rules, 2010 (since amended)), sections 3, 3A and 3B of the Appellate Jurisdiction Act, seeking enlargement of time for filing of the record of appeal and for the record of appeal on record be deemed as having been duly filed. 2.The application is predicated on the grounds on the face of the application and the supporting affidavit of Roselyne Kihara, the legal officer of the applicant’s insurer sworn on 10th December 2024, stating that being dissatisfied with the impugned ruling, they instructed their counsel to file an appeal against the whole ruling; a notice of appeal was filed on 16th May 2024; by a letter dated 31st July 2024, a formal request was made for certified copies of the proceedings and the ruling; the respondent filed garnishee proceedings which meant that the proceedings were still ongoing; counsel was issued with part of the certified proceedings and had to wait for the another batch before lodging the record of appeal. 3.In addition, it is deposed that a follow up letter of 19th September 202, was sent to the registry asking for the complete set of the certified proceedings; and a follow up with emails inquiring on the progress and on 13th November 2024, counsel received an email from the registry indicating that the typed proceedings were ready for collection; they requested for a certificate of delay but were informed that none would be issued as the registry had issued the typed proceedings within the sixty (60) days of the statutory period; this however was not the position as the second batch was issued after the 60 days had lapsed; that counsel proceeded to promptly file the record of appeal after being issued with the complete set of the certified proceedings; the statutory sixty (60) days within which to lodge a record of appeal had however lapsed and this necessitated the instant application seeking for enlargement of time for the applicant's record of appeal to be deemed as properly on record. 4.It is deposed further, that in the circumstances, the delay in filing the record of appeal was occasioned by the delay in issuance of the certified typed proceedings; the applicant has a good appeal with high chances of success and it would be a gross miscarriage of justice if the applicant was denied the chance and opportunity to ventilate its claim; the respondent will not be prejudiced in the event that this application is allowed; a party has a constitutional right to a fair hearing including a right to be heard on appeal where they may be dissatisfied with the determination of a court and this application is made in good faith and without delay. 5.Learned counsel for the applicant filed submissions dated 14th January 2025 and reiterates the averments in the affidavit, that need not be rehashed; in addition, counsel explains that the delay was exacerbated by garnishee proceedings initiated by the respondent, which rendered the court file inaccessible for some time, further hindering the preparation of the record of appeal. In support counsel relies on the principles governing extension of time as articulated by the Supreme Court in Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR) and emphasizes that extension of time is an equitable remedy exercised at the discretion of the court and that consideration ought to include: whether sufficient reasons for the delay have been provided; whether the application was brought promptly; whether the opposing party will suffer prejudice; and whether public interest favours granting the extension. Counsel further cites Imperial Bank Limited (In Receivership) & another vs Alnashir Popat & 18 Others [2018] KECA 685 (KLR) and Muchugi Kiragu vs James Muchugi Kiragu & Another [1998] KECA 81 (KLR). 6.On the part of the respondent learned counsel filed submissions and a list of authorities both dated 23rd September 2025 and submits that although the Court has an unfettered discretion to extend time under rule 4 of the Rules, such discretion must be exercised judiciously in accordance with well-established principles, which include consideration of the length of the delay, the reasons advanced for the delay, the prejudice likely to be suffered by the respondent, and the merits of the intended appeal. Counsel also relies on Salat vs Independent Electoral and Boundaries Commission & 7 Others and Vishva Stone Suppliers Company Limited vs RSR Stone [2006] Limited [2020] KECA 361 (KLR) in support of these principles. 7.On the issue of the length of delay, counsel argues that the applicant has been guilty of an inordinate delay and argues that although the notice of appeal had already been lodged, the mandatory sixty-days period prescribed under rule 84 for filing of the record of appeal expired long before the present application was filed, resulting in a delay of more than five months. According to counsel, such a prolonged delay is unjustifiable and demonstrates a complete lack of diligence on the applicant’s part. Counsel contends that the applicant was fully aware of the applicable timelines yet deliberately remained inactive without any valid or reasonable explanation. In support of this contention, counsel cites Peter Kinyari Kihumba vs Gladys Wanjiru Migwi & Another [2006] KECA 242 (KLR). Counsel argues that, as a general rule, the Court aids the vigilant and not the indolent, asserting that the applicant’s conduct falls squarely within the latter category. 8.Regarding the reasons advanced for the delay, counsel contends that they are neither genuine nor credible. It is argued that, rather than accepting responsibility for failing to comply with the rules, the applicant shifts blame to the court registry by alleging delays in obtaining certified copies of the proceedings. Counsel further points out that there is no mandatory requirement under rule 89 that certified copies of proceedings must first be obtained before filing the record of appeal. Moreover, documentary evidence annexed to the replying affidavit demonstrates that the court registry expressly denied causing any delay. Counsel refers to an email from the registry dated 5th November 2024 confirming that there was no certificate of delay because the proceedings had been prepared and made available within the prescribed period. Consequently, counsel argues that the applicant’s reliance on the anticipated issuance of a certificate of delay is entirely misplaced and merely serves to justify inaction. 9.Counsel further submits that even if some portions of the proceedings had not been immediately available, nothing prevented the applicant from filing the record of appeal within the prescribed timelines and thereafter invoking rules 90 and 94 to lodge a supplementary record of appeal. According to counsel, the applicant instead chose to remain inactive while basing the entire application on the erroneous assumption that a certificate of delay was indispensable. This, it is argued, is inconsistent with the conduct expected of a diligent litigant. Counsel characterises the reasons offered as a mere afterthought designed to sanitise the applicant’s failure to comply with the procedural requirements, relying on the decision in Monica Malel & Another vs Republic & 2 Others [2009] KECA 114 (KLR). 10.On the issue of prejudice, counsel argues that litigation must come to an end and that successful litigants are entitled to enjoy the fruits of their judgments without unnecessary delay. Granting the application, it is submitted, would unfairly prolong litigation and leave the respondent under the constant uncertainty of the dispute, despite having already been determined by a competent court. Counsel further contends that continued litigation would impose additional financial burdens in defending an appeal that ought to have been pursued within the prescribed timelines. It is also argued that allowing the application would prejudice the administration of justice by requiring the Court to devote scarce judicial resources to an appeal that has not been diligently prosecuted, contrary to the principles of judicial economy and efficiency. 11.I have considered the application, the supporting affidavit and the submissions by both parties. The issue for determination is whether or not to grant an extension of time to file a notice of appeal out of time. Rule 4 of the Rules provides that; -The Court may, on such terms as may be 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.In Nyongesa vs. Lukuyu [2025] KECA 1044 (KLR), this Court held 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.” 12.The applicant’s reason for the delay is that typed proceedings were given to counsel piecemeal. The record shows that the impugned ruling was delivered on 24th April 2024. The notice of appeal dated 6th May 2024 was lodged on the 16th of May 2024; the letter bespeaking proceedings attached to the application was written on the 31st of July 2024, and references a letter of 7th May 2024 which is not part of the record. In an email dated 19th September 2024, in reply to the applicant’s counsel's letter of the same day and referencing the earlier letter of 31st July 2024, the registry indicated that the proceedings were ready on 21st June 2024 and that notification was accordingly given. In an email dated 9th October 2024, counsel was asked to apply for further proceedings and when counsel sought for a certificate of delay, by an email dated 5th November 2024, the registry declined, informing counsel that both sets of proceedings as applied for had been issued within 60 days of the request. 13.The email from the proceedings section of the Milimani Court, dated 19th September 2024, indicated that proceedings were ready, and a notification was issued on 21st June 2024. It was not denied that the notification was sent. From the averments, one can deduce that the proceedings were picked. And if so, no explanation has been given as to why the appeal was not filed within the statutory period, given that the said proceedings (1st batch) were relevant to the intended appeal. As put by the respondent, any other proceedings deemed necessary could have been filed by way of a supplementary record. Indeed, the registry was right to decline to bear a burden that was unnecessary and not theirs, on account of the delay in filing the record of appeal. 14.The grounds of appeal may not be frivolous; however, I am of the respective view that the delay has not been satisfactorily explained, is long in the circumstances and would indeed be prejudicial to the respondent. 15.Consequently, the application is dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF JULY, 2026.ALI-ARONI................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR