https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1270

Sahihi Interior Designers Limited v Maingi (Civil Appeal (Application) E585 of 2025) [2026] KECA 1270 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1270 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E585 of 2025 J Mohammed, JA July 3, 2026 Between Sahihi Interior Designers Limited Appellant and Pauline Maingi Respondent (Being an application seeking leave to appeal to the Court of Appeal against the Judgment and Decree of the Employment and Labour Relations Court at Nairobi (Maureen Onyango, J.) delivered on 16th day of July 2021inELRC CAUSE NO. 2383 of 2017) Ruling Background 1.By a Notice of Motion dated 10th July 2025, expressed to be brought under Sections 3 and 3A of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, 2022 (this Court’s Rules), Sahihi Interior Designers Limited (the applicant) seeks orders that:i.leave be granted to lodge an appeal out of time against the judgment and decree of the Employment and Labour Relations Court (ELRC) at Nairobi delivered in ELRC Cause No. 2383 of 2017;ii.the Record of Appeal dated 24th July 2024 be deemed as duly filed;iii.costs; andiv.such further orders as the Court may deem just.Pauline Maingi is the respondent herein. 2.The application is supported by the affidavit of learned counsel for the applicant, Ms. Elizabeth Macharia who deposes that her failure to lodge the appeal within the prescribed period was occasioned by serious and prolonged medical challenges. Counsel explains that she underwent several surgical procedures and continued intensive treatment between August 2024 and June 2025, circumstances which substantially impaired her ability to supervise, attend to or delegate conduct of the matter. 3.Counsel further avers that the two advocates who were expected to manage the firm’s litigation practice during her absence left the firm without handing over the file. She states that although she continues to attend follow-up appointments, the invasive treatment has been completed and her health has considerably improved. Copies of medical records and receipts have been exhibited in support of those averments. 4.The background is largely uncontested. Judgment was delivered on 16th July 2021. A Notice of Appeal was lodged within time and requests for certified proceedings, judgment and decree were promptly made. A certificate of delay was eventually issued on 21st June 2024. Thereafter,the applicant attempted to electronically lodge the record of appeal in July 2025, but the filing was not approved by the registry. 5.The applicant further contends that no prejudice will be occasioned to the respondent as the decretal sum remains secured in a joint interest- earning account operated by the parties’ advocates. Submissions 6.Counsel for the applicant filed written submissions dated 29th April 2026. Counsel submitted that the delay in lodging the appeal was neither deliberate nor attributable to indolence or professional negligence, but was occasioned solely by the grave medical condition suffered by lead counsel, which rendered her incapable of effectively discharging her professional responsibilities for a prolonged period. Reliance was placed on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR) and Silas v Republic [2025] KECA 1443 (KLR). 7.Counsel further submitted that the respondent would suffer no prejudice should the application be allowed since the decretal sum remains secured in a joint interest-earning account maintained in the names of the parties' advocates. Consequently, any prejudice capable of arising can adequately be compensated by an appropriate order as to costs. 8.Lastly, counsel urged that the applicant has consistently demonstrated an intention to pursue the intended appeal and that this Court ought, in the exercise of its discretionary jurisdiction under Rule 4 of the Court of Appeal Rules, to facilitate the determination of disputes on their merits rather than on procedural defaults. Reliance was placed on Belinda Murai & 6 Others v Amos Wainaina [1979] KECA 25, where the Court emphasized that procedural lapses should not ordinarily impede the administration of substantive justice. 9.Counsel on record for the respondent, although duly served with the hearing notice, neither filed a replying affidavit nor lodged submissions in opposition to the application. Determination 10.I have carefully considered the Notice of Motion, the affidavit in support thereof, the written submissions filed by the applicant, the authorities cited and the applicable law. The application invokes the Court's discretionary jurisdiction under Rule 4 of the Court of Appeal Rules, 2022, (this Court’s Rules) which empowers the Court, on such terms as it considers just, to extend time limited by the Rules or by any decision of the Court or a superior court. 11.The discretion conferred by Rule 4 is undoubtedly wide, but like all judicial discretion, it must be exercised judicially, upon reason rather than caprice, and in furtherance of the overriding objective embodied in sections 3A and 3B of the Appellate Jurisdiction Act. The Court is therefore required to undertake a careful balancing exercise, taking into account all the circumstances of the particular case. 12.The applicable principles are now well settled. In Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR), this Court observed that the factors relevant to an application for extension of time are not exhaustive and that the Court is entitled to consider any relevant circumstance presented by the facts of each case. 13.Those principles were subsequently restated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR), where the Court identified, among the relevant considerations:a.whether the applicant has laid a satisfactory basis for extension of time;b.whether the delay has been satisfactorily explained;c.whether the application has been brought without undue delay;d.whether the respondent will suffer prejudice if extension is granted; ande.where appropriate, whether public interest militates either in favour of or against the grant of the orders sought. 14.These principles are neither exhaustive nor intended to be applied mechanically. Rather, they provide the framework within which the Court exercises its equitable discretion, having regard to the interests of justice in each individual case. 15.The first issue for determination is whether the delay in instituting the appeal has been satisfactorily explained. There is no dispute that judgment was delivered on 16th July 2021 and that the applicant lodged a Notice of Appeal on 2nd August 2021, thereby manifesting an intention to challenge the decision within the prescribed period. It is equally undisputed that requests for certified copies of the proceedings, judgment and decree were made shortly thereafter and that a certificate of delay was eventually issued on 21st June 2024. 16.Under Rule 84 of this Court’s Rules an appeal is required to be instituted within sixty days after the lodging of the Notice of Appeal, excluding such period as may properly be certified as having been required for the preparation and delivery of the proceedings. In the present case, although the Notice of Appeal was lodged within time, the Record of Appeal was not filed within the period prescribed by the Rules. The delay is therefore substantial and calls for a satisfactory explanation. 17.The applicant attributes the delay principally to the prolonged illness of learned counsel, who has deponed that she underwent several surgical procedures and remained under intensive treatment over an extended period. The medical records exhibited in support of the application demonstrate that counsel underwent invasive medical procedures and attended regular medical appointments which significantly impaired her ability to discharge her professional obligations. The explanation tendered cannot therefore be dismissed as fanciful or contrived. 18.It is notable that counsel for the applicant demonstrated an intention to appeal by lodging the Notice of Appeal within time. Secondly, the requisite proceedings were requested promptly after judgment. Thirdly, once counsel's medical condition intervened, the evidence establishes that her ability to attend to litigation was substantially compromised for a prolonged period. Finally, upon improvement of her health, steps were taken without undue delay to prepare and lodge the Record of Appeal, albeit unsuccessfully through the electronic filing system. 19.This Court has consistently held that the length of delay, though relevant, is not decisive. What is decisive is whether the explanation offered is plausible and sufficient to justify the Court's exercise of discretion. As was observed in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR), the law prescribes neither a minimum nor a maximum period of delay; rather, the crucial consideration is whether the delay has been satisfactorily explained. In the circumstances of this case, I am persuaded that the explanation, viewed in its totality, is sufficiently credible to warrant the Court's intervention. 20.The applicant contends that it has an arguable appeal on the grounds inter alia that the ELRC erred in both fact and law by finding that the respondent had been terminated by the applicant despite the respondent having issued evidence and testimony that she had resigned. Without going into the merits of the intended appeal as this will be determined by the full bench which will be seized of the main appeal, I am satisfied that the intended appeal is arguable. 21.In Muchugi Kiragu v James Muchugi Kiragu & Another Civil Application No. NAI. 356 of 1996, this Court had the following to say as regards this Court’s discretion under Rule 4:“Lastly, we would like to observe that the discretion granted under rule 4 of the Rules of this Court to extend the time for lodging an appeal is, as is well known, unfettered and is only subject to it being granted on terms as the Court may think just. Within this context, this Court has on several occasions, granted extension of time, on the basis that an intended appeal is an arguable one and that it would therefore, be wrong to shut an applicant out of Court and deny him the right of appeal unless it can fairly be said that his action was in the circumstances, inexcusable and that his opponent was prejudiced by it.” (Emphasis supplied). 22.The next consideration is whether the respondent is likely to suffer prejudice if the orders sought are granted. The applicant has deponed, without contradiction, that the decretal sum is secured in a joint interest- earning account maintained in the names of the parties' advocates. That averment has not been challenged. Consequently, the respondent's ability to realize the fruits of the judgment remains adequately protected pending the determination of the intended appeal. Any residual prejudice is capable of being ameliorated by an appropriate order as to costs. 23.It is also material that the respondent neither filed a replying affidavit nor written submissions to controvert the factual assertions made in support of the application. While the absence of opposition does not relieve the applicant of the burden of establishing a proper basis for the exercise of discretion, the factual depositions regarding counsel's illness, the preservation of the decretal sum and the circumstances surrounding the delay remain substantially uncontroverted. 24.Ultimately, the discretion conferred by Rule 4 is intended to facilitate, rather than impede, the administration of substantive justice. The Court must guard against shutting out a litigant from the appellate process where the justice of the case favours the determination of the dispute on its merits and where no irreparable prejudice will thereby be occasioned to the opposite party. Bearing all the relevant circumstances in mind, I am satisfied that this is an appropriate case for the exercise of that discretion in favour of the applicant. 25.In the result, I find merit in the Notice of Motion dated 10th July 2025.Accordingly, I make the following orders:a.The applicant is granted leave to lodge the intended appeal out of time against the judgment and decree of the Employment and Labour Relations Court in Nairobi ELRC Cause No. 2383 of 2017.b.The Record of Appeal dated 24th July 2024, having been presented for filing, shall be deemed as duly filed and served upon payment of the requisite court fees and subject to compliance with any administrative requirements of the Registry.c.The costs of the application shall abide the outcome of the intended appeal. 26.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026JAMILA MOHAMMEDJUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR