https://new.kenyalaw.org/akn/ke/judgment/keca/2026/943

Njoga v Nairobi City Water & Sewerage Company Ltd (Civil Appeal (Application) E485 of 2025) [2026] KECA 943 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 943 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E485 of 2025 Katwa Kigen, JA May 15, 2026 Between Mark Onyango Njoga Applicant and Nairobi City Water & Sewerage Company Limited Respondent (Being an application seeking extension of time and admission of the Record of Appeal and Memorandum of Appeal filed on 24th June 2025, arising from the Judgment and Decree of (O. Kebira. J.) delivered on 19th March 2025 in ELRC Appeal No. E222 of 2022) Ruling 1.Before me is the Applicant’s Notice of Motion dated 22nd June 2025 brought under Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya, and Rules 4 and 84 of the Court of Appeal Rules, 2022. The Applicant seeks extension of time to file the appeal and for the Record of Appeal and Memorandum of Appeal filed on 24th June 2025 to be deemed duly filed and properly on record. The application is supported by the affidavits of the Applicant dated 22nd June 2025, and is opposed by the Respondent through written submissions dated 22nd April 2026. 2.The Applicant contends that the delay was occasioned by administrative lapses at the Employment and Labour Relations Court. A Notice of Appeal was lodged on 2nd April 2025, together with a request for typed proceedings. Certified copies of the judgment and decree were issued on 5th June 2025, while the typed proceedings and Certificate of Delay were only availed on 21st June 2025. The Record of Appeal and Memorandum of Appeal were filed on 24th June 2025. The Applicant relies on Leo Sila Mutiso v Rose Hellen Wangari Mwangi (Civil Application Nai. 251 of 1997), Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees Civil Application No. 190 of 2019, and Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, to argue that the delay was satisfactorily explained and excusable. He further cites George Mwangi Karuga v Nairobi City Water & Sewerage Company Ltd (Civil Appeal No. 193 of 2019) to demonstrate that the intended appeal raises arguable issues regarding entitlement to dues withheld during suspension. The Applicant submits that no prejudice will be suffered by the Respondent, and invokes Article 159(2)(d) of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act to urge the Court to prioritize substantive justice. 3.The Respondent opposes the application, arguing that the Record of Appeal filed on 24th June 2025 is fatally defective. It contends that the Notice of Appeal included therein was not endorsed, sealed, or dated by the Deputy Registrar as required under Rule 10 of the Court of Appeal Rules, thereby rendering the appeal incompetent. Reliance is placed on Asiligwa v Baumgartner & Another (Civil Appeal No. 372 of 2018) [2021] KECA 308 (KLR), where the Court held that failure to properly lodge a Notice of Appeal is a fatal defect that deprives the Court of jurisdiction. The Respondent submits that extension of time would serve no purpose as the appeal is bound to be struck out for want of a competent Notice of Appeal. It urges dismissal of the application with costs. 4.Having carefully considered the application, the affidavits sworn on 22nd June 2025 by both the Applicant and Counsel, together with the rival submissions on record, the issues that I discern for consideration are: first, whether the Applicant has provided a satisfactory explanation for the delay in filing the appeal; secondly, whether the Record of Appeal filed on 24th June 2025 is fatally defective in light of the objections raised; and thirdly, whether in the circumstances this Court should exercise its discretion under Rule 4 of the Court of Appeal Rules, 2022 to extend time and admit the appeal. The discretion under Rule 4 is unfettered but must be exercised judiciously. The guiding principles are well settled: length of delay, reasons for delay, chances of success of the intended appeal, and prejudice to the respondent – see Leo Sila Mutiso (supra), Fakir Mohamed v Joseph Mugambi & 2 Others [2005] KECA 340 (KLR), and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR. 5.From the application, the affidavits sworn on 22nd June 2025, and the submissions of counsel, the chronology of events is clear and supported by documentary evidence. The Judgment of O. Kebira. J was delivered on 19th March 2025; the Applicant lodged a Notice of Appeal on 2nd April 2025, within the prescribed time, and simultaneously requested typed proceedings; the Employment and Labour Relations Court issued certified copies of the Judgment and Decree on 5th June 2025; the typed proceedings together with the Certificate of Delay were only availed on 21st June 2025; and the Applicant thereafter filed the Record of Appeal and Memorandum of Appeal on 24th June 2025. Accordingly, the delay in filing the Record of Appeal was occasioned by the late issuance of the typed proceedings and the Certificate of Delay, not by indolence on the part of the Applicant. The explanation is satisfactory and corroborated by documentary evidence, thereby bringing the case squarely within the ambit of Rule 84 of the Court of Appeal Rules, 2022. 6.On Competence of the Record of Appeal, the Respondent has raised a serious objection that the Notice of Appeal forming part of the Record was not endorsed by the Deputy Registrar, and therefore the appeal is fatally defective. This Court in Asiligwa v Baumgartner & Another [2021] KECA 308 (KLR) held that failure to properly lodge a Notice of Appeal is fatal, as the Notice is the foundation of the appellate process. I am mindful, however, that while Rule 4 of the Court of Appeal Rules, 2022 empowers a single Judge to deal with applications for extension of time, questions touching on the competence of the appeal itself and the Court’s jurisdiction are matters reserved for the full bench. Accordingly, at this stage, my remit is confined to determining whether the Applicant has shown sufficient cause to warrant extension of time. The broader issue of whether the Record of Appeal is fatally defective for want of a duly endorsed Notice of Appeal is one that must be canvassed and determined before a full bench of this Court. 7.On arguability, the intended appeal indeed raises weighty questions of employment law, entitlement to withhold dues, and the proper interpretation of precedent. These are not frivolous matters. The Court of Appeal has consistently held that arguability does not mean the appeal must succeed, but that it raises at least one bona fide issue deserving consideration. In Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees Civil Application No. 190 of 2019, the Court reiterated that the prospects of success of the intended appeal, even if only prima facie, are relevant. In the present case, the Applicant points to the precedent in George Mwangi Karuga v Nairobi City Water & Sewerage Company Ltd (Civil Appeal No. 193 of 2019), where the Court held that employees transferred from the defunct Nairobi City Council to the Respondent company were entitled to certain dues. The Applicant argues that the Employment and Labour Relations Court failed to award him dues for the period between January and June 2011, despite a clear precedent. This raises a genuine issue of law and fact regarding continuity of employment rights and liability of successor employers. Accordingly, I am satisfied that the intended appeal is arguable within the meaning of the authorities and therefore meets one of the critical parameters for extension of time. 8.On prejudice, having considered the record and the rival submissions, I note that no tangible prejudice has been demonstrated by the Respondent beyond raising technical objections as to the competence of the Notice of Appeal. The jurisprudence of this Court is clear that prejudice must be real, substantial, and not merely speculative. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the Supreme Court emphasized that extension of time is an equitable remedy, and the Court must balance the right of appeal against any prejudice to the respondent. In the present case, the Respondent has not shown how admitting the appeal would cause irreparable harm. Any inconvenience occasioned can be adequately compensated by an award of costs. Accordingly, I find that no prejudice has been demonstrated that would outweigh the Applicant’s right to ventilate his appeal on the merits. 9.In the circumstances, I am persuaded that the Applicant has provided a satisfactory explanation for the delay, that the intended appeal raises arguable issues, and that no prejudice will be suffered by the Respondent. While the objection on competence of the Notice of Appeal is noted, I am satisfied that it can be addressed within the appeal process and does not warrant denial of extension at this stage. 10.Accordingly, having considered the application, the affidavits sworn on 22nd June 2025, and the submissions of both parties, I am satisfied that the Applicant has provided a reasonable and satisfactory explanation for the delay, that the intended appeal raises arguable issues, and that no prejudice has been demonstrated which would outweigh the Applicant’s right to be heard. In the circumstances, the Notice of Motion dated 22nd June 2025 is allowed. The time for filing the appeal is hereby extended. The Record of Appeal and Memorandum of Appeal filed on 24th June 2025 are deemed duly filed and properly on record, subject to paying all requisite filing charges. The Appellant is otherwise directed to regularize any other filings for purposes of the appeal within thirty (30) days from the date of this ruling. Costs shall abide by the outcome of the appeal. 11.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026.KATWA KIGEN K. J......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR