https://new.kenyalaw.org/akn/ke/judgment/keca/2026/999

Mbugua & 2 others v Waema & 2 others (Civil Appeal (Application) E095 of 2025) [2026] KECA 999 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 999 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal (Application) E095 of 2025 AK Murgor, JA May 29, 2026 Between Nicholas Mbugua 1st Applicant Grace Nyambura 2nd Applicant Kenya Long Distance Truckers & Allied Workers Union 3rd Applicant and Ronald Waema 1st Respondent Luca Kanyi 2nd Respondent Ahmed Omar 3rd Respondent (An Application for Extension of time to file and serve a Notice of Appeal against the Judgment and Decree of the Employment and Labour Relations Court atMombasa (Mbaru, J.) on 30th April 2025 inMombasa ELRC Petition No.8 of 2020) Ruling 1.The Applicants’ Notice of Motion dated 29th October 2025 is brought pursuant to Rules 4, 41 and 42 of the Court of Appeal Rules, Sections 3A and 3B of the Appellate Jurisdiction Act seeking inter alia;a.That leave be and is hereby granted for the Applicants to file and serve a Notice of Appeal and Intended Appeal in respect of the Superior Court’s judgment delivered in Mombasa Employment and Labour Relations Court Petition No. 8 of 2020 delivered on 30th April 2025 out of time.b.That the Notice of appeal already filed be deemed to be properly filed and on record.c.That the costs of this application be costs in the Intended Appeal.d.That the Honourable court be at liberty to issue such other or further orders as it may deem just to grant. 2.The Motion is brought on several grounds which are that; the Applicants are aggrieved by the Judgment and Orders of 30th April 2025 in Mombasa Employment and Labour relations Court Petition No. 8 of 2020 and they intend to lodge an Appeal against whole of the Judgment; that the Applicants, were compelled to engage another firm of Advocates, namely Aoko Githara & Company Advocates, who proceeded to file a Notice of Appeal within time and an application seeking stay of execution of the Judgment in the trial court; that by a Ruling delivered on 31st July 2025, the trial court dismissed the application for stay as firm of Aoko Githara & Company was not properly on record for failure to adhere to the requirements for change of advocates, and equally the Notice of appeal was not properly filed; that thereafter, the Applicants instructed the firm of Makena and Company advocates to pursue the appeal, and by then the time to lodge an appeal had already lapsed; that the delay was on account of failure of the previous counsel on record to inform the Applicants of the delivery of the Ruling. 3.It was further contended that, the Applicants Advocates did request for typed proceedings to enable filing of the intended appeal against the Judgment; that they have an arguable appeal with a high probability of success and should be allowed to canvass the intended appeal on merit in the interest of justice; that therefore, time be extended for filing the Notice of appeal; that no prejudice will be occasioned to the Respondents if the orders sought are granted, particularly as the delay was not inordinate nor deliberate as it was occasioned by factors beyond the Applicants’ control. 4.The Application is supported by the affidavit of Nicholas Mbugua, the 1st Applicant which reiterated the grounds of the Application. 5.In opposing the application, the 1st, 2nd and 3rd Respondents, namely Roman Waema, Lucy Kanyi and Ahmed Omar, in a Replying Affidavit deposed that the application is belated, ill-conceived, misinformed and tainted with mala fides; that it does not meet the threshold for the grant of the orders sought. In particular, they aver that the Applicants filed dual Notices of appeal through two different firms of advocates who allegedly had no locus standi, and that the present application is in substance a refiling of a failed application for stay of execution of the Judgment delivered on 30th April 2025. They further depose that the application is fatally defective on account of the incontrovertible fact that it has been presented by a firm of advocates not properly on record and for want of unequivocal authority, particularly in respect of the 3rd Applicant. 6.It was further deposed that despite being aware of the procedural requirements under Order 9 Rule 9 of the Civil Procedure Rules regarding change of advocates after judgment, the Applicants failed to obtain consent from the outgoing advocates or leave of court, thereby rendering the earlier and present applications incompetent. The Respondents assert that the Applicants filed two separate and distinct Notices of Appeal dated 5th May 2025 and 29th October 2025 against the same Judgment, and that there exist parallel proceedings seeking a stay of execution. They contend that the application is a deliberate pattern of delay, forum-shopping and obstruction of justice. 7.The Respondents maintain that the delay in lodging the Notice of Appeal is inordinate and inexcusable, that the application did not meet the legal parameters for extension of time or for stay of execution of a valid inter partes Judgment, and that the intended appeal is neither arguable nor meritorious. 8.The parties filed written submissions. When the application came up for hearing on a virtual platform, learned counsel Ms. Mugambi appeared for the Applicants while learned counsel Mr. Ngonze appeared for the Respondent. In their written submissions, counsel for the Applicants submitted that the Application dated 29th October 2025 seeks leave to file and serve a Notice of Appeal out of time against the Judgment delivered on 30th April 2025 in Mombasa ELRC Petition No. 8 of 2020; that although a Notice of Appeal had initially been filed within time by the previous advocates together with an application for stay, the trial court dismissed the stay application on 31st July 2025 on the ground that the firm was not properly on record for want of compliance with the requirements relating to change of advocates; that consequently, the Notice of Appeal was rendered a nullity, and that by the time the Applicants instructed their current advocates on 29th October 2025, the statutory period for filing the Notice of Appeal had lapsed. Counsel submitted that the delay of approximately fourteen (14) days is neither inordinate nor deliberate. 9.On whether the application was brought expeditiously, counsel argued that the Applicants were unaware of the delivery of the ruling on 31st July 2025 and only became aware on 25th October 2025, and upon instructing a new counsel, they moved with promptitude to file the instant application and Notice of appeal; that no prejudice would be suffered by the Respondents that cannot be compensated by costs. Articles 50(1) and 48 of the Constitution was cited in support of the right to a fair hearing and access to justice. 10.On arguability of the intended appeal, counsel submitted that the Applicants have raised substantive and non-frivolous grounds challenging the Judgment, and that the issues are deserving of appellate interrogation. 11.In their written submissions, counsel for the Respondents submitted that the Notice of Motion dated 29th October 2025 is wholly unmerited and constitutes an abuse of the court process. With respect to the validity of the Notices of Appeal, counsel contended that two distinct Notices of Appeal were lodged by firms not properly on record and were therefore invalid. Reliance was placed on the Board of Trustees of Local Authorities Provident Fund & Another vs Kenya County Government Workers Union & 67 Others [2021] KECA 1087 (KLR) for the mandatory nature of timelines relating to filing and service of notices of appeal. Further reliance is placed on the cases of Daniel Nkirimpa Monirei vs Sayialel Ole Koilel & 4 Others [2016] eKLR; Hunter Trading Company Ltd vs Elf Oil Kenya Ltd (Civil Application No. Nai 6 of 2010); City Chemist (NBI) & Another vs Orient Commercial Bank Ltd, and Ramji Davji Vekaria vs Joseph Oyula [2011] eKLR for the principle that procedural timelines are not cosmetic and cannot be cured by invocation of the overriding objective. 12.Upon considering the motion, the parties replies and the written submissions, the question before the Court is whether time should be extended to file and serve the Notices of appeal. 13.Rule 4 of the Court of Appeal Rules, 2022 vests this Court with wide and discretionary power to extend time within which any act required by the Rules, or by a decision of this Court or a superior court, may be undertaken. The Rule expressly authorizes the Court to enlarge time “on such terms as it considers just,” whether the request is made before or after the lapse of the prescribed period. 14.Notwithstanding the breadth of that discretion, it must be exercised judiciously and not on a whim. In the case of Njuguna vs Magichu & another 73 Others [2003] KLR 507, Waki, JA underscored that although the discretion under Rule 4 is unfettered, it must be anchored on sound principles and directed towards achieving fairness and justice between the parties. 15.The principles that guide the Court in exercising its discretion judiciously are set out in the case of Leo Sila Mutiso vs Hellen Wangari Mwangi [1999] 2 EA 231, which identified the primary factors to be taken into account which are; the length of delay, the explanation for such delay, the prospects of success of the intended appeal, and the degree of prejudice likely to be suffered by the respondent. 16.The case Muringa Company Ltd vs Archdiocese of Nairobi Registered Trustees, Civil Application No.190 of 2019 observed that:“Some of the considerations, which are by no means exhaustive, in an application for extension of time include the length of the delay involved, the reason or reasons for the delay, the possible prejudice, if any, that each party stands to suffer, the conduct of the parties, the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal, the need to protect a party’s opportunity to fully agitate its dispute, against the need to ensure timely resolution of disputes; the public interest issues implicated in the appeal or intended appeal; and whether, prima facie, the intended appeal has chances of success or is a mere frivolity.” 17.In the instant application, the Judgment sought to be appealed from was delivered on 30th April 2025. Under Rule 77 of the Court of Appeal Rules, 2022, the Applicants were required to lodge a Notice of Appeal within fourteen (14) days, that is, on or before 14th May 2025. The Applicants contend that a Notice of Appeal dated 5th May 2025 was filed within time, but was considered to be incompetent because the advocates who lodged it were not properly on record. Subsequently, another Notice of Appeal was filed on 29th October 2025, giving rise to a delay of approximately 168 days, being about five and a half months. It is this Notice that the Applicants seek to extend time for filing. 18.But what becomes apparent from the record is that two Notices of Appeal were filed by different Advocates on behalf of the Applicants. The reason for filing the second Notice was because the first Notice was said to be incompetent having been filed by an advocate who was not on the record. As to whether it was incompetent, Rule 77 of the Court of Appeal rules provides some guidance and specifies:“A person who desires to appeal to the Court shall give notice in writing, which notice shall be lodged in two copies, with the registrar of the superior court.”Sub rule (6) goes on to provide:“A notice of appeal shall be substantially in For D as set out in the first Schedule and signed by or on behalf of the appellant.” 19.The provision clearly states that a person who desires to appeal to the court shall give notice in writing. And that the notice can be signed by or on behalf of the appellant. 20.In this case, it is the Applicants who sought to appeal against the decision of the trial court, whereupon a notice was lodged on their behalf by the firm of Aoko Githara & Co Advocates. The rules of this Court do not specify that the Notice had to be filed by counsel on record. Provided a notice was filed on behalf of the Applicants, it remained a valid notice. And of significance is that, the Notice of 5th May 2025 was filed within the prescribed period. In effect, at all times the Applicants had lodged a valid and competent Notice of Appeal, and therefore there was no reason for them to have filed a second Notice. 21.As observed in the case of Ocean Shipping Company Limited vs Oakdale Commodities Limited, Civil Application No. Nai 198 of 1995 (92/95 Ur) that:“After all there cannot be any sense in having two notices of appeal and validating the one already filed would still amount to an extension of time, which was what the applicant asked for.” 22.In the above cited case, the applicant had filed two notices of appeal, both of which were filed out of time, but they had sought to extend time for filing the second one. This Court took the view that extending time to file the one lodged earlier in time would still amount to validation of the Notice of Appeal lodged out of time. 23.In this case however, the first Notice was not rendered incompetent having been lodged on behalf of the Applicants within the prescribed period. For this reason, there was no need to validate the second Notice of Appeal that was filed way out of time. As a consequence, this application is rendered superfluous, unwarranted and unnecessary, given that the Notice of Appeal dated 5th May 2025 was filed within time. 24.In so finding, I make the following orders:i.that the Notice of Appeal dated 5th May 2025 is deemed as having been properly filed and served;ii.that the Memorandum and Record of Appeal to be lodged and served in accordance with Rule 84 of this Court’s rules; andiii.costs in the appeal.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF MAY, 2026A.K. MURGORJUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR