https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1592

University of Nairobi v Mayaka (Civil Application E678 of 2024) [2026] KECA 1592 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1592 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E678 of 2024 K M'Inoti, JA July 31, 2026 Between University Of Nairobi Applicant and Livingstone Mayaka Respondent (Application for extension of time to appeal from the judgment of the Employment and Labour Relations Court at Nairobi (Mwaure, J.) dated 25th October 2024 in ELRC App. No. E0167 of 2021) Ruling 1.By the Notice of Motion dated 3rd December 2024, the applicant, the University of Nairobi, prays for extension of time to appeal against the judgment of the Employment and Labour Relations Court (ELRC) at Nairobi (Mwaure, J.) dated 25th October 2024. In the alternative, the applicant prays that its notice of appeal filed out of time on 25th November 2024 be deemed to have been filed out of time. 2.The background to the judgment that the applicant wishes to appeal is as follows. The respondent, Livingstone Mayaka, a retired employee of the applicant’s, filed a claim in the Principal Magistrate’s Court at Nairobi claiming underpaid gratuity and refund for uniforms. The applicant resisted the claim on the grounds that the Collective Bargaining Agreement (CBA) under which the respondent was claiming gratuity for 28 years was registered after the respondent had retired, and that the claim for refund for uniforms was time-barred. The subordinate court found in favour of the respondent and awarded him a total of Kshs. 2,707,435.09. 3.The applicant was aggrieved and appealed to the ELRC. By the judgment that the appellant wishes to appeal, the ELRC upheld the award by the trial court, but reduced it by Kshs. 251,027, which it found to have been wrongfully awarded as underpayment. The respondent was awarded interest at 14% p.a. and costs in the trial court and in the ELRC. 4.As I have already stated, the judgment of the ELRC was rendered on 25th October, 2024. By dint of rule 77 of the Court of Appeal Rules, the applicant was obliged to file its notice of appeal within 14 days from the date of the judgment. However, the notice of appeal was filed on 25th November 2024, about a month after the judgment. 5.In the affidavit sworn on 3rd December 2024 in support of the application by Collins F. Omondi, the applicant’s Director, Legal and Corporate Board Services, it is deposed that the learned judge in the ELRC read only the final orders regarding the appeal and that the applicant was not immediately able to determine whether to prefer an appeal without the benefit of appreciating the basis and reasoning of the judgment. 6.It is further deposited that on 28th October 2024, the applicant’s advocates applied in writing for a certified copy of the judgment, which was availed on 12th November 2024. After perusing the judgment, the applicant decided to prefer an appeal and instructed its advocates to proceed as such, by a letter dated 17th November 2024. The notice of appeal was lodged and served upon the respondent on 25th November 2025, which was out of the time prescribed by rule 77 of the Court of Appeal Rules. The said letters are annexed to the affidavit in support of the application. 7.The applicant explains that the delay in lodging the notice of appeal was occasioned by the delay in obtaining a copy of the judgment for analysis, and adds that the intended appeal is arguable and raises valid issues of law which deserve to be considered and determined by this Court. 8.The applicant reiterates the facts narrated above in its written submissions dated 24th September 2025 and adds that the delay is not inordinate and that upon receiving instructions to lodge an appeal, the applicant’s advocates moved with due dispatch and lodge the notice of appeal followed by the present application for extension of time. The applicant relies on the ruling of this Court in Andrew Kiplagat Chemaringo v. Paul Kipkorir [2018] eKLR for the proposition that the onus an applicant for extension of time is to satisfactorily explain the delay. 9.The applicant further contends that its intended appeal is not frivolous and refers to the grounds on the draft memorandum of appeal, including whether the claim for refund for uniform was time barred under statute and whether as a special damage, it was strictly proved as required in law. Further, the applicant questions whether the ELRC correctly awarded the respondent full costs in the trial and first appellate courts, even after partially allowing the appeal. 10.Lastly, the applicant submits that the respondent will not suffer any prejudice if the application is granted. At any rate, it is contended that the respondent has not indicate the prejudice he stands to suffer. 11.The respondent neither responded to the application, nor filed submissions. The record shows that the respondent’s advocates, Messrs. Omongo Gatune & Company Advocates were duly served with the application on 3rd December 2024. Further, on 8th August 2025, the Court issued directions for the hearing of the present application and directed the respondent to file a replying affidavit within seven days. The parties were also directed to file and exchange their submissions. The respondent has not complied with the directions and as it is, the application is not opposed. 12.Be that as it may, rule 4 of the Court of Appeal Rules confers a wide and unfettered discretion upon the Court to extend the time prescribed by itself or the rules. Of course, like all judicial discretion, it must be exercised judiciously and upon reason, rather than arbitrarily or as a matter of course. The Supreme Court, in Nicholas Kiptoo Korir Arap Salat v. IEBC & 7 Others [2014] eKLR, adverted to some of the guiding principles in extension of time to include that:“i.Extension of time is not a 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…” 13.Further, in Leo Sila Mutiso v. Rose Hellen Wangari Mwangi [1999] 2 EA 231, this Court set out some of the factors to be considered in an application for extension of time as follows:“It is now 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: thirdly, (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 Mohamed v. Joseph Mugambi & 2 Others [2005] KECA 340 (KLR) and Imperial Bank Ltd (In Receivership) & Another v. Alnashir Popat & 18 Others [2018] eKLR). 14.The judgment of the ELRC was delivered on 25th October 2024 and the notice of appeal was filed on 25th November 2024, which was late by 17 days. I would not characterise a delay of 17 days as inordinate. More importantly, the applicant has candidly explained the delay as having arisen from a desire to first appreciate the reasoning in the judgment before deciding whether to lodge an appeal, the ELRC having only pronounced the outcome of the appeal. Those averments have not been controverted and I have no reason to doubt them. Accordingly, I am satisfied that the delay has been sufficiently explained. 15.As regards the chances of the intended appeal, at this stage that issue can only be considered on a prima facie basis. In Athuman Nusura Juma v. Afwa Mohamed Ramadhan, CA No 227 of 2015, the Court reiterated that a single judge should not make definitive findings on the issue and stated:“This Court has been careful to ensure that whether the intended appeal has merits or not is not an issue determined with finality by a single judge. That is why in virtually all its decisions on the considerations upon which discretion to extend time is exercised, the Court has prefixed the consideration whether the intended appeal has chances of success with the word “possibly”. 16.I am satisfied that from the applicant’s draft memorandum of appeal, the intended appeal is not frivolous. 17.Lastly, I have no basis for finding that the respondent would suffer more prejudice than the applicant if time for filing the appeal is extended. This is because, despite service of the application directions by the Court, the respondent did not respond to the application. 18.Ultimately, I allow this application and deem the applicant’s notice of appeal dated 25th November 2024 to have been lodged on time. Costs of this application shall abide the outcome of the appeal. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST OF DAY JULY, 2026.K. M’INOTI...................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.