https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2030

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E263 OF 2024** *(Before D. K. N. Marete)* **JOHN ODHIAMBO....................................................................APPELLANT/APPLICANT** **VERSUS** **WELLS FARGO LIMITED ..............................................................................RESPONDENT** **(as consolidated with ELRC Miscellaneous Application No. E208 of 2024)** **RULING** This is an application dated 9th September, 2024 and seeks *inter alia* leave to appeal out of time against the judgment in CMCC E354 of 2015 delivered on 5th April, 2024. It also prays that the Memorandum of Appeal therein annexed be deemed as duly filed and served upon payment of the requisite fees. The application is grounded on the basis that the intended Appellant has a good and arguable with appeal with very high chances of success. Besides, the failure by the Appellant/Applicant to file his Memorandum of Appeal was not deliberate. This is because on several instances, the issuing of the judgment of court was postponed and when it was virtually delivered, no notice was issued and the Appellant/Applicant only learnt of this through the CTS (Case Tracking System) by which time the time for filing the appeal had lapsed. The Respondent opposes the application through Grounds of Opposition as follows; 1. *The Application has not met the legal threshold for the grant of the orders sought.* 2. *The Draft Memorandum of Appeal does not disclose any triable issues.* 3. *The Application has been brought after an inordinate delay after the delivery of the judgment which the Applicant now seeks to appeal.* 4. *No valid/legally acceptable reason has been presented for the inordinate delay in bringing the Appeal before the appropriate forum.* 5. *The present matter has been in the judicial system since 2015, being a period of 10 years, and the Respondent will be greatly prejudiced if the matter is reopened at this stage. There must be an end to litigation.* The Appellant/Applicant in their written submissions dated 3rd March, 2026 advances a narration of the turn of events leading to the judgment of court and submits that they did not deliberately fail to file an appeal on time but this was occasioned by circumstances beyond their control. They rely on the provision of Section 79G of the Civil Procedure Act, Chapter 21, Laws of Kenya to express the discretionary nature of an award of this remedy by court. The Appellant/Applicant further seeks reliance on the authority of **Leo sila Mutiso vs Hellen Wangari Mwangi [1999] 2EA 231** which provides the principles guiding the extension of time for filing an appeal out of time as a scrutiny of the following issues; *…first the length of the delay, secondly, the reason 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.* This is besides the provisions of Article 48 of the Constitution of Kenya, 2010 that assures and guarantees access to justice as read with Article 50 that guarantees the right to a fair hearing. Additionally, Article 159(2)(d) of the said Constitution binds courts to determine disputes on their merits and without undue regard to technicalities. It is their case that litigants should not be held to suffer for procedural and administrative lapses not whatsoever attributable to them. Having met the criterion as set out in the authority above, this application becomes sustainable and ought to be allowed. The Respondents in their written submissions dated 10th March, 2026 oppose the application primarily on the following grounds; 1. The application has not met the legal threshold for grant of the orders sought. 2. The draft Memorandum of Appeal does not disclose any triable issues. 3. The application has been brought up after inordinate delay on the part of the Appellant/Applicant. 4. No valid or legally acceptable reason has been presented to explain this inordinate delay 5. This matter has been in the judicial system for ten (10) years since 2015 and the Respondent would be greatly prejudiced by a re-opening of the same at this stage. 6. There must be an end to litigation. It is their further submissions that there has been five (5) months delay in bringing out this application and sought to rely on the authority of **Reliance Bank Limited (In liquidation) Vs Grandways Ventures Ltd & 2 others [2007) eKLR** where the court observed that an explanation of all delay, time not withstanding must be explained and in such absence extension of time may not be granted. The Applicant’s reliance on the authority of **Leo Sila Mutiso**, Supra, becomes a contradiction in that they fail to adequately explain the delay on their part. It is not applicable. The Respondent’s case in opposition to the application overwhelms that of the Applicant. They do not come out clean and square in explaining the delay in filing this application or the appeal. In the circumstances of the respective cases of the parties, a grant of this application would not suffice for failure to meet the threshold for such an order. I am therefore inclined to dismiss the application with orders that each party bears their costs of the same. Delivered, dated and signed this **15th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** Appearances: 1. Mr. Mahugu holding brief for Mr. Mengesa instructed by Mengesa & Company Advocates for the Appellant/Applicant 2. Mr. Omino instructed by Walker Kontos Advocates for the Respondents