Maina & another v Nyeri County Government & another (Civil Application E022 of 2026) [2026] KECA 1003 (KLR) (29 May 2026) (Ruling)

Maina & another v Nyeri County Government & another (Civil Application E022 of 2026) [2026] KECA 1003 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1003 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E022 of 2026 Katwa Kigen, JA May 29, 2026 Between Peter Mugo Maina 1st Applicant Julius Wairiuko Wanjohi 2nd Applicant and Nyeri County Government 1st Respondent Nyeri County Public Service Board 2nd Respondent (Being an application for leave to file and serve a Notice of Appeal and Record of Appeal out of time against the Judgment of the Employment and Labour Relations Court at Nyeri (Nzioki wa Makau, J.) delivered on 27th May, 2020 in ELRC Cause No. 264 of 2017) Ruling 1.This is a Notice of Motion dated 2nd March, 2026, brought under rule 4 of the Court of Appeal Rules and all other enabling provisions of the law. The applicants, Peter Mugo Maina and Julius Wairiuko Wanjohi, seek leave to file an appeal out of time against the judgment of justice Nzioki wa Makau delivered on 27th May, 2020 in Nyeri Employment and Labour Relations Court Cause No. 264 of 2017. 2.The applicants contend that their claim at the trial court was dismissed with costs without consideration of the merits, and being dissatisfied, they lodged a Notice of Appeal dated 8th June, 2020 through their former advocates, Warutere & Associates. However, they received no communication from the said advocates regarding the compilation and filing of the record of appeal, and upon discovering that the advocates had failed to follow up on the matter, they were compelled to bring the present application. In his Supporting Affidavit, sworn on 2nd March, 2026, the 1st applicant, Peter Mugo Maina, deponed on his own behalf and on behalf of the 2nd applicant that the dismissal of their claim necessitated an appeal, but their advocate failed to pursue it. He annexed the impugned judgment, the Notice of Appeal, a draft Memorandum of Appeal, and a letter dated 17th February, 2026 requesting certified copies of proceedings. He further averred that the intended appeal raises arguable grounds and that, unless leave is granted, their right of appeal will be defeated and rendered nugatory. The applicants, therefore, urge this Court to exercise its discretion under rule 4 of the Court of Appeal Rules to extend time for filing the appeal in order to safeguard their right and ensure justice is served. 3.The application is opposed vide a Replying Affidavit dated 16th March, 2026, sworn by Edward Irungu Mwangi, the County Secretary of Nyeri County Government, on behalf of the respondents. In that affidavit, he depones that the applicants have not offered any reasonable or credible explanation for the inordinate delay of approximately six years in lodging the intended appeal, and that reliance on the alleged failure of their former advocates cannot excuse their own lack of diligence. He further avers that no evidence has been tendered to show any effort by the applicants to follow up the matter, and that permitting the appeal at this stage would prejudice the respondents, who are entitled to enjoy the fruits of the judgment delivered in their favour. He concludes that the application is an abuse of the court process and prays that it be dismissed with costs. 4.Both parties filed written submissions. The applicants’ submissions are dated 30th March, 2026, while the respondents’ submissions are dated 7th May, 2026. The applicants submit that their Motion was properly brought under rule 4 of the Court of Appeal Rules, and that the delay in filing the appeal was occasioned by the inadvertence of their former advocates, Warutere & Associates, who had lodged a Notice of Appeal on 8th June, 2020 but failed to pursue the matter further. They argue that the delay was neither deliberate nor inordinate, that they have since sought certified copies of proceedings, and that their draft Memorandum of Appeal raises arguable grounds deserving consideration. They rely on authorities, including University of Eldoret vs. Hosea Sitienei [2020] eKLR, County Executive of Kisumu vs. County Government of Kisumu [2017] eKLR, and Nicholas Kiptoo Arap Korir Salat vs. IEBC [2014] eKLR, to urge that the Court’s discretion should be exercised in their favour in the interests of justice. 5.Conversely, the respondents submit that the delay of nearly six years is inordinate and has not been satisfactorily explained. They contend that the applicants cannot simply blame their former advocates without demonstrating diligence or evidence of follow-up, and that no correspondence or complaint has been annexed to show efforts to pursue the appeal. They rely on authorities, including Gaciani & 11 others vs. Kimanga [2023] KESC 23 (KLR) and George Kang’ethe Waruhiu vs. Esther Nyamweru Munene [2021] eKLR, to argue that equity aids the vigilant and not the indolent. They further submit that the draft Memorandum of Appeal discloses no serious or novel issues of law, and that granting the application would prejudice the respondents by reopening litigation long concluded. They therefore urge that the application be dismissed with costs. 6.I have considered the Notice of Motion, the affidavits in support and in reply, the annexures thereto, and the rival submissions of counsel. The applicable law is Rule 4 of the Court of Appeal Rules, 2022, which grants this Court unfettered discretion to extend time, though such discretion must be exercised judicially and on sound principles. The guiding considerations include: the length of delay, the reasons for the delay, the prospects of success of the intended appeal, and the degree of prejudice to the respondents. 7.The impugned judgment was delivered on 27th May, 2020, and a Notice of Appeal was lodged on 8th June, 2020. The present application was filed on 2nd March, 2026, a delay of nearly six years. This delay is undeniably long. The applicants attribute it to the failure of their former advocates to pursue the appeal. While courts have held that mistakes of counsel should not always be visited upon litigants, it is equally settled that litigants bear a duty to show interest in their cases and to follow up diligently. In this case, no correspondence, complaint, or evidence of follow-up has been annexed to demonstrate vigilance on the part of the applicants. 8.With the best intentions and all possible benign discretion, it would seem that, unfortunately, the 6-year delay is more than inordinate and is a solid brick wall militating against any extension of time. Extending time in the situation of this case is arguably irresponsible. The delay extinguished the applicants’ averred right to appeal. 9.On prospects of success, the draft Memorandum of Appeal raises issues relating to the effect of devolution on the employment status of youth polytechnic instructors and the transfer of payroll to County Governments. These are arguable points of law, though not necessarily novel. However, arguability alone cannot cure indolence where delay is inordinate and unexplained. On prejudice, the respondents are entitled to enjoy the fruits of a judgment delivered in their favour nearly six years ago. Reopening litigation at this stage would undermine legal certainty and prejudice public administration. Further, it will undermine the policy of finality of litigation. 10.With the 6-year delay, the court file and the related exhibits could have been archived, or even disposed off complicating any chance to advance the appeal. 11.It would also seem that the applicants did not issue a letter bespeaking proceedings within time, rendering any appeal outside 60 days void in law. 12.Balancing all factors, I find that the delay has not been satisfactorily explained, that the applicants have not demonstrated diligence, extension will undermine the rule of law and defeat the desired finality of litigation. The prejudice to the respondents outweighs the applicants’ right to be heard at this late stage. The prejudice on the applicants is self- inflicted. Accordingly, the Notice of Motion dated 2nd March, 2026 is hereby dismissed with costs to the respondents. It is so ordered. DATED AND DELIVERED AT NYERI ON THIS 29TH DAY OF MAY, 2026.KATWA KIGEN K. J.......................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR