https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1439

Akumu v Odhiambo (Civil Application E045 of 2026) [2026] KECA 1439 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1439 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Application E045 of 2026 EC Mwita, JA July 10, 2026 Between Samwel Odhiambo Akumu Applicant and Stephen Omondi Odhiambo Respondent (Being an application for extension of time to file a notice of appeal out of time from the judgment and decree of the Employment and Labour Relations Court of Kenya at Kisumu (Baari, J) dated 2nd May 2024 in ELRCA No. E025 of 2023 Appeal E025 of 2023 ) Ruling 1.Samwel Odhiambo Akumu, (the applicant), has vide a motion on notice application dated 3rd March 2026, brought pursuant to the provisions of sections 3, 3A and 3B of the Appellate Jurisdiction Act and rules 4, 31, 39(b), 41, 43, 47 and 53 of the Court of Appeal Rules and all other enabling provisions of the law, invoked the jurisdiction of this Court sitting as a Single Judge, seeking an order extending and or enlarging time for filing an appeal out of time against the judgment and decree of the Environment and Labour Relations Court at Kisumu, (Baari,J), (the ELRC) dated and delivered on 2nd May 2024 in ELRCA No. E025 of 2023. 2.The motion is premised on the grounds on its face, the applicant’s affidavit sworn on 3rd March 2026 and 22nd June 2026 and written submissions dated 24th June 2026. From those grounds, affidavits and the written submissions, the applicant’s case is that the judgment and decree he wants to appeal against was delivered on 2nd May 2024 in the presence of his counsel; that he immediately instructed his counsel to appeal and a notice of appeal dated 8th May 2024 was duly filed; that the delay in filing the appeal was due to the time the ELRC Registry took to prepare and avail typed proceedings which were factors beyond his control; that he obtained copies of the proceedings, a certificate of delay and the decree after the time for filing the appeal had lapsed; that the record of appeal has been prepared and he now prays that the Court extends time for him to file the appeal out of time. The applicant maintains that the intended appeal is arguable and that the delay is neither deliberate nor inordinate. 3.The appellant relies on several decisions in urging this Court to allow his application and extend time for lodging the appeal. The decisions include; Salat v Independent Electoral and Boundaries Commission & others [2014] KESC 12 (KLR); Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231and Mwangi v Wambugu [1984] KLR 453 on the principles the Court should consider in an application for extension of time. 4.Stephen Omondi Odhiambo, the respondent, has opposed the application and filed written submissions dated 16th June 2026. The gist of the respondent’s response is that although the applicant filed a notice of appeal on time, he did not file the record of appeal within the prescribed time and the inordinate delay of about twenty two months has not been explained; that the applicant only obtained the certificate of delay on 18th December 2025 and the decree on 7th January 2026 which demonstrates that he was not serious in filing the record of appeal on time; that the applicant cannot rely on Article 159 of the Constitution to cure the delay; that allowing the application will occasion prejudice to him and that the applicant has not shown that the intended appeal is arguable. 5.The respondent has relied on the decision of this Court in Aviation Cargo Support Limited v St. Mark Freight Services Limited [2014] eKLR, where a delay of six months was found to be inordinate and that one has to demonstrate that the intended appeal has merit and even if the intended appeal has merit, where the delay is inordinate and has not been explained, leave ought not to be granted. 6.This application has been canvassed through affidavits and written submissions only without appearance of counsel and or the parties. 7.I have carefully considered the motion, the grounds and the affidavits in support thereof, respective parties’ submissions, the decisions cited and the law. 8.Rule 4 of the Court of Appeal Rules, grants this Court discretionary power to enlarge time which is exercisable on well settled principles. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, this Court stated as follows:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; third, (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.”(See also Fakir Mohammed v Joseph Mugambi & 2 Others [2005] eKLR). 9.The settled principles the Court should consider, include the length of the delay, the reason for the delay, the chances of the appeal succeeding, the degree of prejudice to the respondent and the conduct of the parties. 10.In the present application as regards the length of the delay, the judgment was delivered on 2nd May 2024 and the parties are in agreement that the notice of appeal was filed timeously on 8th May 2024, expressing the applicant’s intention to appeal against that judgement. The applicant was therefore required to lodge the record of appeal within sixty days from the date of filing the notice of appeal, in line with rule 84 of the Court of Appeal Rules which requires that an appeal be instituted within sixty days after the date when the notice of appeal was lodged, which would mean sixty days after 8th May 2024. 11.The applicant obtained a certificate of delay which he has attached to the application. According to the certificate of delay dated 18th December 2025, the applicant’s counsel wrote a letter dated 8th May 2024 bespeaking proceedings which was within the thirty days period; the proceedings were prepared and uploaded on the CTS on 7th October 2025 and that it took the ELC Registry between 8th May 2024 and 7th October 2025 to prepare and supply copies of the proceedings thus, the dates between 8th May 2024 and 7th October 2025 should be excluded from the computation of time for filing the record of appeal. Based on the certificate of delay, the applicant had sixty days after 7th October 2025 to lodge the record of appeal as required by rule 84 of the Rules, which lapsed on or about 8th December 2025, excepting public holidays in between, if any. 12.The applicant has now approached this Court seeking the exercise of its discretion to extend or enlarge time within which to lodge the record of appeal. 13.As the Supreme Court stated in Salat v Independent Electoral and Boundaries Commission & others (supra), one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it. 14.This Court also observed in Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR, that the discretion under rule 4 though unfettered, has to be exercised judicially, not on whim, sympathy or caprice. In exercising the discretion, the Court ought to be guided by consideration of the factors stated in previous decisions including, but not limited to, the period of delay, the reasons for the delay and the degree of prejudice to the respondent if the application is granted. 15.In the present application, the applicant was expected to file the record of appeal within sixty days after 8th of October 2025 which period lapsed around 8th December 2025. However, the applicant does not explain at all why the record of appeal was not lodged within those sixty days and even after this application was filed in March 2026, there has not been any attempt to explain the delay. 16.An applicant seeking the exercise of this Court’s discretion to enlarge time, must not only justify the length of the delay in doing the act required of him under the rules, he must also give reasons for the delay to enable the Court consider how the length of the delay and the reasons therefor, would affect the respondent or the prejudice to be cause to the respondent if the application was allowed. The fact that the certificate of delay is dated 18th December 2025 and the decree was obtained on 7th January, 2026 is not an explanation for the delay in lodging the record of appeal for the purpose of exercising the Court’s discretion to enlarge time for lodging the record of appeal out of time. Reasons for obtaining the decree on 7th January 2026 when judgment was delivered on 2nd May 2024, and the certificate of delay on 18th December 2025 when the proceedings were ready and were uploaded on the CTS on 7th October 2025 were not given. In other words, the applicant has not explained the delay in filing the record of appeal on time and or justified the reasons for that delay. 17.Having considered the application, I am of the view that the delay herein has not been explained to the satisfaction of this Court. As to whether the intended appeal is arguable or not, I cannot make a determination on this issue sitting as a Single Judge and I will therefore not delve into it. 18.On prejudice, the delay having not been explained, I am of the considered opinion that in the circumstances of this case, allowing the application will cause prejudice to the respondent who has been waiting for the lodging and service of the record of appeal in vain. 19.Taking into account the totality of all the circumstances of this case, I am of the considered view, that the applicant has failed to satisfy the principles for consideration in the exercise of my unfettered discretion pursuant to rule 4 of the Rules of this Court to extend time. 20.Accordingly, the applicant’s motion dated 3rd March 2026, is declined and is hereby dismissed with costs. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.E C MWITA .....................................JUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR.