Universities Academic Staff Union v Kenyatta University & another [2015] KECA 333 (KLR)

The court reiterated that the discretion under Rule 4 is unfettered but must be exercised judicially. The established parameters from a long line of authorities guide the court, considering the length of and reason for delay, the prospects of the appeal, prejudice, effect on public administration, importance of compliance with time limits and public importance of the issues. These factors are relevant but not exhaustive, and the court applied them to the present delays of 2 days, 4 months and 10 days.

The court cited Madan JA in Belinda Murai v Amoi Wainaina on the nature of mistakes made by lawyers. Although the judge personally observed that in a modern liberalized era clients who choose their counsel might bear responsibility for counsel's mistakes, the court held that this is not the only consideration and proceeded to examine whether the appeal was arguable and whether the respondent would be prejudiced.

The court examined the record of appeal and found it raised arguable points of law, in particular a poignant question on the jurisdiction of the High Court to quash a decision of the Industrial Court. It further found the respondent had not filed a Rule 84 application to strike out the appeal within the prescribed 30 days, and would suffer no significant prejudice beyond inconvenience, so the substantive matters should proceed to hearing.