https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1391
The court found the applicant’s explanation for the delay credible and excusable because former advocates failed to collect the typed proceedings when they were ready, which caused the record of appeal not to be filed within time. The delay was not inordinate, the application was unopposed, and no prejudice to the...
Source-derived case information.
- Citation
- [2026] KECA 1391 (KLR)
- Parties
- Applicant: Techomed Limited; Respondent: Andre Van Der Merwe
- Court
- Court of Appeal
- Jurisdiction
- Kenya
- Case Number
- Civil Application E043 of 2026
- Procedural Posture
- Civil Application for Extension of Time to File Record of Appeal / Ruling on Unopposed Application
- Outcome
- Application allowed
- Judges
- ["LK Kimaru"]
- Legal Topics
- Extension of Time, Delay in Filing Record of Appeal, Discretion Under Rule 4, Unopposed Application, Advocate Default, Prejudice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Techomed Limited
Applicant
Andre Van Der Merwe
Respondent
Procedural Posture
Civil Application for Extension of Time to File Record of Appeal / Ruling on Unopposed Application
Legal Issues
- 1 Whether the Court should extend time to file and serve the record of appeal out of time under rule 4 of the Court of Appeal Rules.
- 2 Whether the applicant gave a satisfactory explanation for the delay.
- 3 Whether the delay was inordinate and whether the respondent would suffer prejudice.
Ratio Decidendi
The court found the applicant’s explanation for the delay credible and excusable because former advocates failed to collect the typed proceedings when they were ready, which caused the record of appeal not to be filed within time. The delay was not inordinate, the application was unopposed, and no prejudice to the respondent was shown. The court therefore exercised its discretion under rule 4 to grant extension of time.
Court Disposition
Application allowed
Orders
- Time extended for filing and serving the record of appeal.
- Applicant to file and serve the record of appeal within fourteen (14) days from the date of the ruling.
Full Case Text
Judgment text and source record
1 paragraphs
Techomed Ltd v Merwe (Civil Application E043 of 2026) [2026] KECA 1391 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KECA 1391 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E043 of 2026 LK Kimaru, JA July 13, 2026 Between Techomed Limited Applicant and Andre Van Der Merwe Respondent (Being an application for extension of time to file the record of appeal out of time from the Judgment of the Employment and Labour Relations Court of Kenya at Nairobi (S. Rutto, J.) dated 27th June, 2025 in ELRC No. E1025 of 2023) Ruling 1.The applicant was aggrieved by the decision of the Employment and Labour Relations Court (ELRC) rendered on 27th June, 2025. The applicant duly lodged a notice of intention to appeal against the said decision to this court. It also applied to be supplied with certified copies of the proceedings of the ELRC. The said proceedings were prepared and made ready for collection by the applicant. However, the applicant’s former advocates on record did not collect the said proceedings in time hence the record of appeal was not filed in time. By the time the applicant instructed another advocate to come on record on its behalf, the time upon which the record of appeal was supposed to be filed had elapsed. 2.The applicant has therefore invoked the jurisdiction of this court under rule 4 of the Court of Appeal Rules seeking the following order:“That this honourable court extends the time within which to file and serve a record of appeal from the Judgment of Hon. Stella Rutto delivered on 27th June, 2025 in Nairobi Employment and Labour Relations Court Cause No. E1029 of 2023.” 3.The application is supported by the annexed affidavit of Feiza Ismael and the grounds on the face of the application. 4.The respondent was served with the application. An affidavit of service has been filed. The respondent neither filed a replying affidavit or written submission in opposition to the application. The application is therefore unopposed. 5.The applicant in his written submissions appreciates the jurisdiction of this court under rule 4 of the Court of Appeal Rules; that jurisdiction is discretionary and unfettered though the court is guided by well settled principles in what it should consider which includes; the length of the delay, the reasons for delay, whether the appeal is likely to succeed and finally if the respondent will be prejudice (See Leo Sila Mutiso v. Rose Hellen Wangari Mwangi [1999] 2EA 231). 6.In the present application, the applicant explained the reason for delay. They were let down by their former advocates who failed to collect the certified typed copies of the proceedings from the ELRC when they were available for collection. By the time the applicant instructed a new advocate, the period in which the applicant was required to have filed the said record of appeal had elapsed. This court is persuaded by the reason advanced by the applicant for its failure to file the record of appeal in time. It is excusable. The period of delay is not inordinate. The application is unopposed. The application has merit and shall be allowed. 7.The applicant shall file and serve the record of appeal within fourteen (14) days of today’s date. There shall be no orders as to costs. DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF JULY, 2026.L. KIMARU..................................JUDGE OF APPEALI certify that this is a true copy of original.Signed.DEPUTY REGISTRAR.