https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2015

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA ELRC APPEAL NO. E018 OF 2026 ***(Being an intended appeal from the Judgment of Hon. D. W. Nyambu, Chief Magistrate, delivered on 17th December 2025 in Mombasa Chief Magistrate's Court, MCELRC No. E690 of 2022)*** ALPHONCE OJERA ................................APPLICANT/APPELLANT VERSUS VICKERS SECURITY SERVICES LTD ................. RESPONDENT RULING **A. INTRODUCTION** 1. Before this Court is an Exparte-Originating Summons dated and filed on 20th April 2026 (“the Application”), brought by the Applicant, Alphonce Ojera, under Sections 1A, 1B, 3, 3A, 79G and 95 of the Civil Procedure Act, Cap 21 Laws of Kenya, Order 50 Rule 4 of the Civil Procedure Rules, 2010, and Sections 12(2), 13 and 18 of the Employment and Labour Relations Court Rules, 2024. The Applicant seeks the following orders: a) That the Applicant be granted leave to file his Memorandum of Appeal out of time, and the served Memorandum of Appeal dated 6th February 2026, and filed on 6th February 2026, be deemed as duly filed within time. b) That this Honourable Court be pleased to grant any other order it deems fit in the circumstances. c) That the costs of the Application be provided for. 1. Although drawn and filed as an ex parte application, the Respondent, Vickers Security Services Ltd, upon being served, entered the fray and filed Grounds of Opposition dated 21st April 2026, together with a Replying Affidavit sworn on the same date by Joseph Kiogora, its Human Resource Manager. The matter accordingly proceeded on a contested, inter partes footing, with a Hearing Notice issued for 11th May 2026, and both parties thereafter filed written submissions. 2. This is the ruling on the merits of that Application. **B. BACKGROUND** 1. The Application arises from a Judgment delivered on 17th December 2025 by Hon. D. W. Nyambu, Chief Magistrate, in Mombasa Chief Magistrate’s Court MCELRC No. E690 of 2022, Alphonce Ojera v Vickers Security Services Ltd. In that suit, the Claimant (the present Applicant) had, by a Memorandum of Claim dated 9th December 2022, sought Kshs. 1,815,138.23 against the Respondent for unfair termination and terminal dues, arising from the non-renewal of a security services contract between the Respondent and Grain Bulk Handlers Limited, which occasioned the Applicant’s redundancy. 2. The trial court found that the termination of the Applicant’s employment on account of redundancy was not unlawful and, consequently, declined to award compensation for unlawful termination. It nonetheless entered judgment for the Applicant in the sum of Kshs. 362,365.47, comprising the balance of one month’s notice pay, underpayment of wages, house allowance and severance pay, together with costs and interest. The trial court declined to award the Applicant’s claims for unpaid leave, holidays worked and overtime, holding these to be unproved and speculative, and granted a stay of execution of thirty (30) days, *suo motu*. 3. Aggrieved by the trial court’s refusal to award the claims for leave, public holidays and overtime — being prayers (d), (e), (g) and (h) of the Statement of Claim — the Applicant resolved to appeal, but only in respect of that discrete part of the Judgment. It is not in dispute, and is indeed expressly averred by the Applicant, that he does not intend to challenge the awards already made in his favour, nor the finding that his termination was not unlawful. 4. The circumstances surrounding the timing of the filing of the Memorandum of Appeal are set out in the Applicant’s Supporting Affidavit sworn on 20th April 2026. 5. The application is opposed by the Respondent via a Replying Affidavit, sworn on 21st April 2026 by Joseph Kiogora, its Human Resources Manager. **C. THE APPLICANT’S CASE** 1. The grounds upon which the Application is premised, as set out on the face of the Originating Summons and elaborated in the Supporting Affidavit and written submissions, may be summarised as follows: 2. that the Judgment was delivered on 17th December 2025 and the Memorandum of Appeal ought, ordinarily, to have been lodged within thirty (30) days thereof; 3. that any delay was inadvertently occasioned by circumstances beyond the Applicant’s control, namely the December Court recess, the bereavement and burial of a close relative up-country, and the time reasonably taken to obtain and study the Judgment and to give instructions; 4. that, applying Order 50 Rule 4 of the Civil Procedure Rules, the period between 21st December and 13th January is excluded from computation, such that the filing period lapsed on or about 9th February 2026, rendering the Memorandum of Appeal filed on 6th February 2026 timeously filed; 5. that the Application has, in any event, been brought within a reasonable time; 6. that the intended appeal, being confined to specific, identifiable findings of the trial court on claims for overtime, holiday pay and leave days — supported by the Applicant’s payslip, a Government gazette notice on wage guidelines, and testimony said to be unrebutted — raises arguable grounds with a high chance of success; and 7. that the Respondent stands to suffer no prejudice whatsoever should the leave sought be granted, the Respondent having already fully settled the sums awarded under the unappealed portion of the Judgment. **D. THE RESPONDENT’S OPPOSITION** 1. The Respondent opposes the Application vide Grounds of Opposition dated 21st April 2026, a Replying Affidavit of even date sworn by Joseph Kiogora, and written submissions. The Respondent’s opposition may be summarised as follows: 2. that the Application is misconceived, incompetent and an abuse of the process of the Court; 3. that the Applicant has not offered a satisfactory, plausible or sufficient explanation for what the Respondent characterises as an inordinate delay of four (4) months in filing the intended appeal, measured from the date of Judgment to the date of the Application; 4. that the Applicant has not met the threshold for extension of time set out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR; 5. that the intended appeal is not arguable and has no reasonable prospects of success, the claims for overtime, holiday pay and unfair termination having been dismissed by the trial court for want of credible or sufficient evidence, and the Applicant being obliged, as the party asserting entitlement to overtime and holiday pay, to prove specific dates, hours and particulars, which he did not do — citing Ngunda v Ready Consultancy Limited (Civil Appeal 129 of 2019), Rogoli Ole Manadiegi v General Cargo Services Limited (ELRC Case No. 026/2024), Sgs Security Guards Services Ltd v Chepkemoi (ELRC Appeal Nos. E119 & E133 of 2024) and CMC Aviation Ltd v Mohammed Noor [2015] eKLR; 6. that the Judgment the subject of the intended appeal has already been fully satisfied, the Respondent having settled the decretal sum, including costs, in full, and the Applicant having received and retained the same without protest; 7. that, having accepted the decretal sum, the Applicant cannot be heard to “approbate and reprobate” and is estopped, on the equitable maxim that he who seeks equity must come with clean hands and must do equity, from now seeking to reopen the matter without refunding or offering to refund what he has received — relying on Flora N. Wasike v Destimo Wamboko [1988] eKLR; 8. that granting the orders sought would occasion grave prejudice to the Respondent, who has already discharged its obligations under the Judgment in full, and would offend the principle of finality of litigation; and 9. that the Application is brought in bad faith and is intended merely to delay the conclusion of the matter, and ought to be dismissed with costs. **E. ISSUES FOR DETERMINATION** 1. Having considered the Application, the Supporting Affidavit, the Grounds of Opposition, the Replying Affidavit, the rival written submissions and the authorities cited, the Court is satisfied that the following issues arise for determination: 2. whether the mode of commencing the Application, by way of Originating Summons, is fatal to it; 3. whether the delay, if any, in filing the Memorandum of Appeal and in bringing the present Application is inordinate and unexplained, such as to disentitle the Applicant to the exercise of the Court’s discretion; 4. whether the Respondent stands to suffer any prejudice should the orders sought be granted; 5. whether the settlement of the decretal sum awarded under the unappealed portion of the Judgment operates to bar or estop the Applicant from pursuing the intended appeal; and 6. whether, on a holistic consideration of the foregoing, the Application meets the threshold for the grant of leave and extension of time. **F. ANALYSIS AND DETERMINATION** ***Issue (a): Mode of commencement — Originating Summons versus Notice of Motion*** 1. It is necessary, before descending into the substance of the Application, to make an observation regarding the manner in which it has been brought. The Application is styled as an “Exparte-Originating Summons”. This is, with respect, a mode of commencement strange and unknown to Order 50 of the Civil Procedure Rules, under which applications of this nature — for extension or enlargement of time — are ordinarily brought by way of Notice of Motion, supported by affidavit, and served upon the opposite party. Originating Summons is a mode of commencement reserved for specific classes of proceedings expressly designated as such under the Rules or under specific statutes, and is not the appropriate vehicle for an interlocutory application of this kind, in an already existing cause between identified parties. 2. This notwithstanding, the Court does not consider this procedural misstep fatal to the Application. The Court is guided by Article 159(2)(d) of the Constitution and by Sections 1A, 1B and 3A of the Civil Procedure Act, which enjoin courts to be guided by the overriding objective of facilitating the just, expeditious, proportionate and affordable resolution of disputes, and not to accord undue regard to procedural technicalities that occasion no prejudice. In the present case, the Respondent was served, entered appearance, filed comprehensive Grounds of Opposition and a Replying Affidavit responding fully to the merits of the Application, and filed detailed written submissions. No prejudice arising from the mode of commencement has been pleaded or demonstrated by the Respondent, who has been able to, and did in fact, meet the Application squarely on its merits. In these circumstances, the misnomer in the mode of commencement goes to form rather than substance. ***Issue (b): Whether the delay is inordinate and unexplained*** 1. This is the principal battleground between the parties. The Respondent’s case, both in its Grounds of Opposition and its submissions, proceeds on the premise that the relevant “delay” for purposes of assessing this Application is the period between the delivery of the Judgment on 17th December 2025 and the filing of the Application on 20th April 2026 — a period it characterises as “four (4) months” and as “inordinate, excessive and inexcusable”. 2. With respect, this characterisation conflates two distinct matters that ought to be assessed separately: first, whether the Memorandum of Appeal itself was filed within the time allowed by law; and second, whether the present Application, brought to place the matter beyond doubt and to regularise the record, was itself brought without undue delay. 3. On the first matter, the Court accepts the Applicant’s computation. Order 50 Rule 4 of the Civil Procedure Rules provides, in unambiguous terms, that the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time for the amending, delivering or filing of any pleading or the doing of any other act. Applying this rule, and excluding the period between 21st December 2025 and 13th January 2026 from the computation of the thirty (30) day period running from the delivery of the Judgment on 17th December 2025, the period for filing the Memorandum of Appeal did not lapse until on or about 9th February 2026. The Memorandum of Appeal, dated and filed on 6th February 2026, was accordingly filed within time. The Court is fortified in this approach by the reasoning of the High Court in Francis Likhabila v Barclays Bank of Kenya (supra), where Githua J, applying the Court of Appeal’s holding in Gabriel Osimbo v Chrispinus Mandare [2020] eKLR, held that Order 50 Rule 4 simply provides the manner of computing time and does not offend, or stand to be read down against, statutory provisions prescribing appeal periods. 4. It follows that, strictly, the Applicant may not even have required leave to file the Memorandum of Appeal “out of time”, since, on a proper computation, it was not out of time at all. The Court nonetheless accepts that, given the historical divergence of judicial opinion on this precise question — a divergence acknowledged in Likhabila itself, where the learned Judge respectfully declined to follow a contrary decision of a sister court — it was not unreasonable, but indeed prudent, for the Applicant to seek this Court’s imprimatur removing any doubt as to the competence of the appeal, rather than risk it being struck out at a later stage on a technical objection, as had very nearly occurred in Likhabila. 5. As to the second matter — the timeliness of the present Application — the Court finds that the period between the filing of the Memorandum of Appeal on 6th February 2026 and the filing of the Application on 20th April 2026 was substantially consumed by the legitimate and necessary process of applying for, and awaiting, certified copies of the proceedings, and thereafter compiling the Record of Appeal. It is deposed, and not disputed, that the Applicant applied for certified proceedings and has since filed his Record of Appeal, together with a Supplementary Record of Appeal, both of which are now before the Court. These are steps a diligent appellant is required to take, and the time reasonably consumed in taking them cannot, in the circumstances of this case, be laid at the Applicant’s doorstep as culpable or dilatory conduct. The Application, filed together with the completed Record of Appeal, was in the Court’s view filed timeously. 6. Even adopting the Respondent’s broader framing and measuring the entire period from the delivery of Judgment to the filing of the Application, the explanation tendered by the Applicant — the December Court recess, the bereavement of a close relative and attendant burial obligations up-country, the delay in the upload of the Judgment onto the Judiciary portal, and the subsequent, unavoidable process of obtaining certified proceedings — is neither fanciful nor contrived. It is corroborated by documentary evidence, including a burial permit, correspondence from the office of the Assistant Chief, and travel documentation. In the totality of these circumstances, the Court is not persuaded that the delay, howsoever computed, can properly be characterised as inordinate. It was, in the Court’s assessment, reasonably and satisfactorily explained. 7. It is also significant that the Applicant’s Record of Appeal, together with the Supplementary Record of Appeal, are already on the court file. The appeal is, therefore, substantially ready for hearing, and can be listed and heard on a priority basis without further delay or inconvenience to either party or to the Court. This weighs in favour of regularising the position now, rather than visiting upon the Applicant the finality of a procedural default, real or perceived. ***Issue (c): Prejudice to the Respondent*** 1. The Respondent has asserted, in general terms, that it would suffer “grave prejudice” were the orders sought to be granted, on account of having already discharged its obligations under the Judgment in full. The Court has considered this assertion and finds it unpersuasive. Prejudice, in this context, must refer to some specific detriment the Respondent would suffer in defending the intended appeal. None has been identified. The mere fact that a respondent would rather not face an appeal at all is not the kind of prejudice the law contemplates as a bar to the grant of an extension of time. ***Issue (d): Effect of settlement of the decretal sum*** 1. The Respondent places considerable reliance on the fact that it has settled the decretal sum awarded by the trial court, and that the Applicant received and retained the same without protest, to argue that the Applicant is now estopped from pursuing an appeal, cannot be permitted to “approbate and reprobate”, and does not come to this Court with clean hands. Reliance is placed on Flora N. Wasike v Destimo Wamboko [1988] eKLR. 2. The Court has carefully considered this submission and does not find it persuasive on the facts of this case. It is critical to observe that the appeal the Applicant intends to pursue is not directed at the portion of the Judgment under which the decretal sum was computed and paid — namely, the awards for notice pay, wage underpayment, house allowance and severance pay. The Applicant has been candid and consistent, from the Supporting Affidavit through to his written submissions, that he does not challenge those awards, nor the finding that his termination was not unlawful. What he seeks to appeal is the trial court’s refusal to award four further, discrete heads of claim — overtime, holiday pay and leave days — which the trial court disallowed as unproved and speculative, and in respect of which no payment whatsoever has been made to him. There is, therefore, no inconsistency, still less any impermissible approbation and reprobation, in the Applicant accepting payment of sums the trial court found due to him under heads of claim he does not dispute, while simultaneously appealing the court’s refusal to award him other, separate sums under different heads of claim. A litigant does not forfeit his right of appeal against an adverse finding on one claim merely because he has received payment of sums awarded to him on a different, unrelated claim in the same suit. 3. Flora N. Wasike v Destimo Wamboko (supra), which speaks to the general importance of finality in litigation and to a party being bound by processes it has taken up and concluded, is, with respect, distinguishable. It does not stand for the proposition, nor could it, that satisfaction of an undisputed portion of a judgment forecloses an appeal against a distinct and disputed portion of that very same judgment. To hold otherwise would place litigants in the invidious position of having to choose between enforcing awards properly due to them and pursuing legitimate appeals on other issues — a position the law does not, and should not, countenance. In the Court’s considered view, the fact that a decretal sum, in respect of an unappealed portion of a judgment, has been settled does not in any manner diminish a party’s right of appeal against a separate and distinct portion of that judgment which remains genuinely in contest. ***Issue (e): Whether the threshold for the exercise of discretion has been met*** 1. The principles governing the grant of extensions of time are well settled and were, somewhat ironically, correctly cited by the Respondent itself, in reliance on Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, where the Supreme Court held that the discretion to extend time is not to be exercised as a matter of course, but is guided by, among other considerations: the length of the delay; the reason for the delay; the possibility that the intended appeal will succeed if time is extended; the degree of prejudice to the opposite party; the effect of the delay on the administration of justice; whether the application has been brought without undue delay; and the public interest, if any. 2. Applying those very factors to the facts before this Court: the delay, properly computed, is minimal to non-existent in respect of the Memorandum of Appeal itself, and reasonably explained in respect of the compilation of the Record of Appeal and the filing of the present Application; the reasons advanced — a bereavement, burial obligations, and a court recess coinciding with the delivery of judgment — are cogent, sympathetic and documented. 3. On a holistic assessment of these factors, the Court is satisfied that the Applicant has met the threshold required for the grant of the orders sought. The overriding objective enshrined in Sections 1A and 1B of the Civil Procedure Act, given further constitutional force by Article 159(2)(d) of the Constitution, requires this Court to facilitate the just determination of disputes, including a litigant’s right to have a genuine grievance ventilated on appeal, rather than to shut out an appellant on narrow technical grounds where no injustice to the other party is shown to arise. The Court is guided, too, by the observation of Githua J in Francis Likhabila v Barclays Bank of Kenya (supra), that even where an appeal is not filed within time, it is not an automatic candidate for being struck out or barred, and that a court may, in appropriate cases, exercise its discretion under the proviso to Section 79G of the Civil Procedure Act, or invoke its inherent power under Section 3A of the Act, to admit an appeal out of time where the ends of justice so require. **G. DISPOSITION** 1. For the foregoing reasons, the Court finds that the Application dated 20th April 2026 has merit and is hereby ALLOWED, in the following terms: 2. Leave be and is hereby granted to the Applicant to file his Memorandum of Appeal out of time. 3. The Memorandum of Appeal dated 6th February 2026 and filed on 6th February 2026, together with the Record of Appeal and Supplementary Record of Appeal already on the court file, be and are hereby deemed to have been duly and properly filed within time. 4. The appeal, being already substantially ready for hearing, shall be listed for mention on 12th October 2026 for directions on its hearing. 5. The costs of this Application shall abide the outcome of the appeal. It is so ordered. Dated, signed and delivered at Mombasa this 16th Day of July 2026 **OCHARO KEBIRA,** **JUDGE**