https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1075

Rotich v Teachers Service Commission (Civil Application E113 of 2025) [2026] KECA 1075 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KECA 1075 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E113 of 2025 JM Mativo, JA June 3, 2026 Between Paul Kipchumba Rotich & 4 others Applicant and Teachers Service Commission & 4 others Respondent (Being an application for extension of time to file a notice of appeal and record of appeal against the judgment and decree of the Employment and Labour Relations Court at Nakuru (J. Rika, J.) dated 29th August 2025 in ELRC Petition No. E008 of 2024) Ruling 1.Vide an application dated 6th November 2025, the applicants pray for leave to file both the notice of appeal and record of appeal out of time against the judgment and decree of Rika, J. issued on 29th August 2025 in ELRC Petition No. E008 of 2024. The applicants also pray for an order that the notice of appeal uploaded in the Judiciary Case Tracking System (CTS) on 4th September 2025 and duly served upon all the parties be deemed as duly filed upon payment of the requisite filing fees. Also, the applicants pray for an order that they be granted leave to file and serve their record of appeal within such time as this Court may direct. Lastly, the applicants pray for any other orders this Court may deem just and expedient in the interests of justice and costs of this application be provided for. 2.The grounds in support of the application are: (a) the judgment sought to be appealed against was delivered on 29th August 2025 by Rika, J. in Nakuru ELRC Petition No. E008 of 2024; Paul Kipchumba Rotich & 4 Others v The Teachers Service Commission and Others; (b) aggrieved by the said decision, the applicants instructed their previous advocates to file a notice of appeal within the stipulated period; (c) the said advocates uploaded the notice of appeal in the CTS within the stipulated period but inadvertedly failed to pay the required fees, hence the notice of appeal was not validated; (d) the applicants were unaware of the omission; (e) they learnt of the omission on 3rd November 2025 after instructing a new counsel; (f) the omission was inadvertent; (g) the mistake of their advocates should not be visited upon them; (h) the intended appeal raises arguable issues of law and fact including violation of fundamental rights; (i) the respondents will suffer no prejudice; (j) it is in the interests of justice and in furtherance of their constitutional rights under Articles 48 and 50 (1) of the Constitution that this application be allowed. 3.In response to the application, the 1st and 5th respondents filed the replying affidavit dated 3rd December 2025 sworn by Chrisantose Odhiambo Ogony, the 1st respondent Human Resource Management and Development Director. The salient averments are: (a) no valid notice of appeal was filed and served within the requisite time; (b) the purported service of the notice of appeal was effected through the wrong e-mail address; (c) that the applicants are guilty of inordinate delay, and the applicants waited for 70 days to file the instant application; (c) the delay has not been properly explained; (d) the respondents will suffer irreparable loss; (d) there should be an end to litigation; (e) there should be expeditious disposal of cases. 4.The 4th respondent filed a replying affidavit dated 18th November 2025 sworn by Akelo Misori, its Secretary General. The crux of the affidavit is that the reason offered is not plausible; equity does not aid the indolent; and that the application does not meet the threshold to merit the extension sought. 5.The 2nd and 3rd respondents did not file any reply to the application or submissions. 6.The applicants filed a further affidavit dated 21st November 2025 sworn by William Lengoyiah essentially disputing the contents of the 4th respondents replying affidavit and reiterating the contents of the affidavit in support of their application. Also, on record is a supplementary affidavit dated 9th December 2025 sworn by the same affiant disputing the contents of the 1st to 5th respondents’ replying affidavit and reiterating the averments in support of the application. 7.In support of their application, the applicants filed submissions dated 21st November 2025. The applicants cited Leo Sila Mutiso v Hellen Wangari Mwangi [999] 2 EA 231 in support of the proposition that extension of time is essentially a matter of the Court’s discretion. They also cited Fakir Mohamed v Joseph Mugambi & 2 Others Civil Application No. NAI 332 of 2004 to urge inter alia that there is no limit on the number of factors a court should consider. The applicants also relied on Andrew Chemaringo v Paul Kibet [2018] eKLR in support of the proposition that there is no maximum or minimum period of delay set under the law and stated that the delay in this case is only 60 days which has been fully accounted for in that, the delay is attributed to its previous advocate and cited Belinda Murai & Others v Amos Wainaina [1978] eKLR in support of the proposition that a mistake of counsel should not be visited upon the client. Lastly, the applicants maintained that their memorandum of appeal discloses trial issues and that the respondents will suffer no prejudice if the orders sought are granted. 8.The 1st to 5th respondents filed written submissions dated 13th January 2026 essentially faulting the applicants for deliberately misleading the Court, that they used the wrong e-mail address while serving the notice of appeal and that they have not provided a justifiable reason for the delay. They described the application as bad in law. They also maintained that the applicants had a duty to follow up their case. Lastly, they stand to suffer irreparable loss if the extension sought is granted urging that litigation must come to an end. 9.The 4th respondent filed written submissions dated 28th November 2025 mainly arguing that the application does not meet the threshold to merit the extension sought, that the delay is unreasonable nor has it been satisfactorily explained and that it stands to be prejudiced if the application is allowed. Lastly, the 4th respondent maintained that the applicants’ appeal is not arguable 10.I have considered the application, the affidavit in support thereto and its annextures, the replying affidavits and the parties’ submissions. Rule 4 of the Court of Appeal Rules, 2022 provides:“The Court may, on such terms as it thinks just, by order extend the time limited by these Rules or by any decision of the Court or of a Superior Court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 11.The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR summed up the applicable considerations as follows:i.Extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;iii.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case- to-case basis;iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;v.Whether there will be any prejudice suffered by the respondents if the extension is granted;vi.Whether the application has been brought without undue delay; and,vii.Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 12.As decided cases suggest, a plausible, reasonable and comprehensive explanation for the delay is a crucial, though not sole factor that triggers the Court's discretion to grant extension of time to file an appeal. Courts operate on the principle that if there is no reasonable explanation, the indulgence will generally not be granted, even if there are prospects of success.13.An applicant must provide a full and reasonable explanation that covers the entire period of the delay. A vague or incomplete explanation will not trigger the discretion to condone the delay. I must emphasize that condonation is not a right and that "hard- earned judgments" should not be lightly disturbed. A party must show a valid reason for the laxity. The investigation into the reasonableness of the delay is a factual enquiry. However, once a "plausible explanation", is found to exist, it enables the Court to look at other factors like prospects of success so as to exercise its discretion.14.To be deemed "plausible" to trigger the Court's discretion, the applicant generally must show: (a) that the delay was not due to negligent inaction. The delay must be accounted for by factors beyond the applicant's control (e.g., waiting for transcripts, severe illness or genuine attorney negligence, though the latter is viewed critically). (b) It must cover the entire period. Explaining only part of the period of delay is "far from satisfactory" and most likely, it will not justify the extension. (c) the reason must not be "fictitious" or "calculated" delay the case. The Court requires honesty in the explanation. 15.The guiding threshold is clearly set out in Rule 4 which is “on such terms as may be just” which means the standard is the "interests of justice," which requires balancing the explanation for the delay, the prospects of success, the importance of the case and prejudice to the parties. A plausible explanation, however, is the "key that unlocks the door" to this balancing exercise. If the explanation for the delay is not plausible (i.e., it is weak, contradictory or non- existent), the Court usually will not exercise its discretion to extend time even if the appeal has merit. A good explanation for a long delay is often needed to satisfy the "good cause" requirement. 16.The germane issue offered in support of the application is that the applicants’ previous advocate filed a notice of appeal, it was uploaded in the judiciary CTS but the advocate inadvertedly omitted to pay the court filing fees, therefore, the notice of appeal could not be validated, hence the delay. While an attorney's mistake is not an automatic blanket password for condonation, a genuine, untainted omission will merit an extension of time if it passes the threshold of being bona fide (made in good faith) and not a product of gross negligence. In Testin Lala Mata Din v A. rayanan [1969] 2 SCC 770, the Supreme Court of India refined the boundary between an acceptable omission and unacceptable carelessness. The Court was categorical that there is no general automatic rule that an advocate's mistake constitutes "sufficient cause.” However, it stated that the court must verify whether the attorney's error was a bona fide mistake (e.g., misinterpreting a complex provision of law, a mathematical calculation error of limitation or an administrative tracking mix- up) or whether it was merely a fabricated cover story to mask deliberate inaction or bad faith. If the error is genuine, accidental, and free of mala fide (bad faith) intent, the Court is justified in granting an extension of time. 17.The landmark ruling in Collector, Land Acquisition, Anantnag v Mst. Katiji [1987] 2 SCC 107 fundamentally shifted how courts view "sufficient cause" regarding delays. The Court was emphatic that when technical considerations and substantial justice are pitted against each other, the cause of substantial justice must be preferred. Courts must recognize that a litigant does not ordinarily stand to benefit from defaulting on deadlines; instead, they run a massive risk of losing their right to be heard. Therefore, courts should adopt a non-pedantic, elastic and justice-oriented approach rather than a legalistic one when reviewing why an attorney missed a timeline. 18.There is nothing to suggest that the advocate’s omission was not bona fides. There is no dispute that the advocate uploaded the notice of appeal in the CTS within the period prescribed under the law. He served the notice of appeal. This is acknowledged by the 1st to 5th respondents who maintain that service was effected through the wrong e-mail. The key issue here is not whether the notice was served correctly, but whether the omission to pay the Court fees is excusable to merit the extension of time sought. I am persuaded that the reason proffered for the omission is acceptable. I have no reason to doubt it nor has it been shown to be untrue or made in bad faith or far-fetched to be true. Accordingly, I am inclined to exercise my discretion in the applicants’ favour. Therefore, I allow the applicants’ application dated 6th November 2025 and issue the following orders:a.Leave be and is hereby granted to the applicants to file their notice of appeal and record of appeal out of time against the judgment and decree of Rika, J. issued on 29th August 2025 in ELRC Petition No. E008 of 2024.b.The applicants’ notice of appeal uploaded in the Judiciary Case Tracking System (CTS) on 4th September 2025 shall be deemed as duly filed upon payment of the requisite filing fees.c.The applicants are hereby granted leave to file and serve their record of appeal within 30 days from the date of this ruling.d.The costs of this application shall be costs of the appeal. DATED AND DELIVERED AT NAKURU THIS 3RD DAY OF JUNE, 2026.J. MATIVO................................ JUDGE OF APPEALI certify that this is a true copy of the original.Signed. DEPUTY REGISTRAR