https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1246

Mangira & another (Suing as personal representatives of the Estate of the late Christina Sae Alila) v Teachers Service Commission (Civil Appeal (Application) E577 of 2025) [2026] KECA 1246 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1246 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E577 of 2025 J Mohammed, JA July 3, 2026 Between Alfayo Alila Mangira 1st Applicant Joseph Ouma Alila 2nd Applicant Suing as personal representatives of the Estate of the late Christina Sae Alila and Teachers Service Commission Respondent (An application for extension of time to file and serve a record of appeal against the ruling and order of the Employment & Labour Relations Court at Nairobi (M. Nduma, J.) dated 5th December 2024 in ELRC JR No. 3 of 2020) Ruling Introduction 1.The notice of motion dated 30th July 2025 is brought under sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules (this Court’s Rules). Alfayo Alila Mangira and Joseph Ouma Alila (suing as the personal representatives of the Estate of the late Christina Sae Alila) (the applicants) seek extension of time to file and serve the record of appeal against the ruling and order of the Employment and Labour Relations Court (M Nduma, J - as he then was) delivered on 5th December 2024 in ELRC JR No. 3 of 2024. They further pray that the record of appeal lodged on 23rd July 2025 be deemed as duly filed and served and that the costs of the application abide the intended appeal.Teachers Service Commission is the respondent herein. 2.The motion is supported by the affidavit of learned counsel for the applicants, Mr. Titus Koceyo, Advocate, who depones inter alia that the impugned ruling was delivered on 5th December 2024 and that a notice of appeal was lodged on the same day. Counsel further depones that the proceedings were supplied on 15th January 2025 but, owing to the applicants' inability to raise the requisite filing fees despite diligent efforts, the record of appeal could not be lodged within the period prescribed by this Court’s Rules. 3.It is further deponed that the delay was neither deliberate nor inordinate; that the intended appeal raises arguable points of law; and that unless the orders sought are granted the applicants will be shut out from the appellate process. The respondent, though duly served, neither filed a replying affidavit nor written submissions. Determination 4.I have considered the motion, the grounds thereof, the affidavit in support, the written submissions and the applicable law. The court has wide and unfettered discretion in deciding whether to extend time or decline the same. However, in exercising its discretion, the court should do so judiciously. 5.The principles governing the exercise of that discretion are now settled.In Fakir Mohamed v Joseph Mugambi & 2 others [2005] eKLR, the court stated that the relevant considerations include the length of the delay, the reason for the delay, the arguability of the intended appeal, the degree of prejudice to the respondent and, where appropriate, the public interest in the administration of justice. 6.Rule 4 of the Court of Appeal Rules does not provide for factors the court ought to consider in an application for extension of time but courts have devised appropriate principles to be applied in achieving an objective decision in the circumstances of each case. The case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 which is the locus classicus, laid down the parameters as follows:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” [Emphasis supplied]. 7.The chronology is not disputed. The impugned ruling was delivered on 5th December 2024. A notice of appeal was lodged on the same day. The proceedings became available on 15th January 2025. Time for lodging the record of appeal therefore expired on or about 15th March 2025. The present motion was filed on 30th July 2025, resulting in a delay of approximately four months and fifteen days. 8.The explanation advanced for the delay is the applicants' inability to raise the prescribed filing fees within time. Financial hardship does not invariably constitute sufficient cause. Each case must, however, turn on its own peculiar facts. In the present matter, the explanation has been given on oath, has not been controverted by the respondent, and I have no basis for rejecting it. In the circumstances, I am satisfied that the delay has been satisfactorily explained. 9.The applicants contend that they have an arguable appeal as laid out in the draft memorandum of appeal. It is trite that an applicant need only demonstrate that the intended appeal is not frivolous. Without going into the merits of the appeal as this will be determined by the full bench that will be seized of the main appeal, I am satisfied that the intended appeal is arguable. 10.In Muchugi Kiragu v James Muchugi Kiragu & another Civil Application No. Nai 356 of 1996, this court had the following to say as regards this court’s discretion under Rule 4:“Lastly, we would like to observe that the discretion granted under rule 4 of the Rules of this court to extend the time for lodging an appeal is, as is well known, unfettered and is only subject to it being granted on terms as the court may think just. Within this context, this court has on several occasions, granted extension of time, on the basis that an intended appeal is an arguable one and that it would therefore, be wrong to shut an applicant out of court and deny him the right of appeal unless it can fairly be said that his action was in the circumstances, inexcusable and that his opponent was prejudiced by it.” (Emphasis supplied). 11.On the degree of prejudice to the respondent, I am called upon to balance the competing interests of the parties, that is, the injustice to the applicants in denying it an extension, against the prejudice to the respondent in granting an extension. The applicants are aggrieved by the ruling of the High Court and is desirous of appealing against the said ruling out of time. 12.In the case of Richard Nchapi Leiyagu vs IEBC & 2 Others, Civil Appeal No. 18 of 2013, this court expressed itself as follows:“The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day there should be proportionality.” 13.From the circumstances of the application before me, the applicants have demonstrated the existence of the parameters set out in Leo Sila Mutiso (supra). Time is hereby extended. The applicants shall file and serve the Memorandum of Appeal and the record of appeal within ten (10) days of the date of this ruling. In default, the leave hereby granted shall automatically lapse without further order of the court. 14.The costs of the motion shall abide the outcome of the intended appeal. 15.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026.JAMILA MOHAMMED………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR