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Court of AppealAllowedNot stated in the judgment (arising from intended appeal against Mombasa ELRC Appeal No. E041 of 2023)

Awadh v Noor Roundation Registered Trustees (Trading as Madina Muslim School) (Civil Application E116 of 2024) [2025] KECA 759 (KLR)

Court of Appeal of Kenya
9 May 2025
929 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal excused a delayed appeal caused by a court fee error, confirming registry mistakes can justify late filings.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Mombasa by Tuiyott JA on a notice of motion dated 22nd October 2024 seeking to have the applicant's memorandum and record of appeal dated 9th April 2024 and supplementary record of appeal filed 15th October 2024 admitted out of time and deemed duly filed and served. The intended appeal targets a judgment of the Employment and Labour Relations Court at Mombasa in ELRC Appeal No. E041 of 2023 delivered on 25th January 2024, which allowed the respondent's appeal to the extent of reviewing the trial court's awards. The applicant filed a notice of appeal in time, but payment of assessed court fees failed because the registry under-assessed the fees at Kshs.1,500 when the correct figure was Kshs.15,800; payment was eventually made by the applicant's advocates on 21st August 2024, producing a delay of about three and a half months, with a further two months before the motion was filed. Applying the classic Leo Sila Mutiso criteria (length of delay, reasons, chances of success, prejudice), the court found the reasons plausible and the cumulative delay excusable. It rejected the respondent's prejudice argument based on the applicant's admitted pauperism, holding that such concerns belong in an application for enhanced security of costs under rule 111(3), not in an extension-of-time application. The motion was allowed, the record deemed filed and served, with costs in the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the delay in filing and serving the memorandum and record of appeal is inordinate and excusable
  2. 2.Whether the memorandum and record of appeal dated 9th April 2024 and the supplementary record of appeal filed 15th October 2024 should be deemed duly filed and served
  3. 3.Whether the respondent's apprehension about inability to recover costs from an admitted pauper justifies refusal of the extension

Key legal issues

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01

Whether the cumulative delay of about three and a half months in filing the record of appeal and a further two months in filing the application is excusable

Holding

The court found the reasons plausible and the delay not inordinate, and excused it.

Reasoning

The appeal was timeously lodged for assessment on 11th April 2024 within sixty days of the certificate of readiness. A technical registry error in fee assessment (initially Kshs.1,500 against a correct Kshs.15,800) delayed payment until 21st August 2024, when the applicant's advocates paid on his behalf. The court treated this as a plausible explanation and the cumulative delay as not so inordinate as to be inexcusable.

p. 2
02

Whether the respondent's alleged prejudice, arising from the applicant being an admitted pauper unable to pay costs, warranted refusal

Holding

The court held that an extension-of-time application is not the proper forum for such an apprehension; the respondent should seek enhanced security of costs under rule 111(3).

Reasoning

The respondent argued that, since the applicant admitted being a pauper, it could not recover costs if the appeal failed, exposing it to prejudice. The court declined to determine that question on the motion, holding that the proper remedy, if the existing security of costs was inadequate, was an application for enhanced security of costs under rule 111(3) of the Court's Rules.

p. 2

Legal principles established

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  • Extension of time is discretionary and the court considers the length of the delay, the reasons for it, the chances of the appeal succeeding, and prejudice to the respondent.
  • An application for extension of time is not the proper forum to raise apprehensions about the applicant's inability to pay costs; the remedy is an application for enhanced security of costs under rule 111(3) of the Court of Appeal Rules.

Court orders

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  1. 1.The notice of motion dated 22nd October 2024 is allowed
  2. 2.The memorandum and record of appeal dated 9th April 2024 and the supplementary record of appeal filed on 15th October 2024 are deemed as duly filed and served
  3. 3.Costs of the application shall be in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court, Mombasa
Mombasa ELRC Appeal No. E041 of 2023
Jurisdiction invoked
Inherent discretion to extend time for filing an appeal under the Court of Appeal Rules (rule 111(3) referred to for security of costs); motion for admission out of time of memorandum and record of appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is now settled that the decision whether to extend the time for appealing is essentially discretionary.
p. 2Discretionary nature of extension of time
The reasons profiered for the greater period of delay are plausible and as the cumulative period of delay is also not so inordinate, it is excusable.
p. 2Excusability of delay caused by fee under-assessment
The notice of motion dated 22nd October 2024 is hereby allowed.
p. 2Final orders
The memorandum and record of appeal dated 9th April, 2024 and the supplementary record of appeal filed on 15th October, 2024 are hereby deemed as duly filed and served. Costs of the application shall be in the intended appeal.
p. 3Final orders - deeming and costs

Issues in the judgment

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minor

The judgment states the certificate of delay was issued on 5th April 2024 in one place, but paragraph 2 states the advocates were alerted of readiness on 5th March 2024 and furnished with them on 8th March 2024; the date of issuance of the certificate is inconsistently narrated.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Awadh v Noor Roundation Registered Trustees (Trading as Madina Muslim School) (Civil Application E116 of 2024) [2025] KECA 759 (KLR)", Case Analysis (2025). Not stated in the judgment (arising from intended appeal against Mombasa ELRC Appeal No. E041 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/759/eng@2025-05-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.