Kenya Private Universities Non Teaching Workers Union v Pan African Christian University (Civil Application E396 of 2023) [2025] KECA 143 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal, ruling that a party cannot blame an unnamed clerk for its advocate's year-long inaction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave under rule 4 to file its appeal out of time
- 2.Whether the explanation offered for the delay from June 2022 to August 2023 justifies exercise of the Court's discretion
Key legal issues
#Extension of time under rule 4 - sufficiency of explanation for delay
The application was dismissed because the delay from June 2022 to August 2023 was inordinate and the explanation blaming a clerk, unsupported by any affidavit from the advocate or the clerk, did not merit the exercise of discretion.
The court applied the established Mwangi v Kenya Airways factors: length of delay, reason for delay, chances of the appeal, and prejudice. A certificate of delay excused only the period of court delay in preparing proceedings. For the balance of over a year, neither the client nor the advocates took any action. The client's duty to pursue its matter, and the advocate's duty to account for instructions, meant the delay could not be excused through the trite 'mistakes of counsel' formula, which applies to excusable mistakes, not inaction.
Legal principles established
#- Responsibility for compliance with appellate rules rests on the party and its agent, the advocate; an advocate's inaction cannot be excused by blaming an unnamed clerk, and the 'mistakes of counsel' principle does not apply to inaction.
Court orders
#- 1.The application dated 1st August 2023 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court
- ELRC No. 682 of 2015
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (inherent extension-of-time jurisdiction)
Relief refused
#Leave to file and serve the appeal out of time
The delay of over one year after receipt of proceedings was inordinate and inadequately explained; blame was laid on an unnamed clerk with no affidavit from the advocate.
Costs
There shall be no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Ultimately, responsibility for a matter lies on a party and its agent, the advocate. Failure to comply with the Rules cannot be blamed on an unnamed clerk, with no afidavit by the advocate to explain what action he or she, as the person in receipt of instructions and ultimately responsible to the client, did to carry out instructions.
In these circumstances, the delay cannot be wished away by falling back on the trite statement that mistakes of counsel should not be visited on the litigant.
I accordingly find no merit in the application dated 1st August 2023, and it is hereby dismissed. There shall be no order as to costs.
Issues in the judgment
#Judgment contains typographical errors in quoted/analytical passages
Paragraph 4 omits the word 'by' in 'as instructed the applicant's advocates'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Private Universities Non Teaching Workers Union v Pan African Christian University (Civil Application E396 of 2023) [2025] KECA 143 (KLR)", Case Analysis (2025). ELRC No. 682 of 2015 (Application dated 1st August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/143/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.