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Court of AppealDismissedCivil Application (Nairobi) - application dated 29th July 2024· [2025] KECA 785 (KLR)

Francis Ogola Ayoo v Nursing Council of Kenya & 2 others

Court of Appeal of Kenya
9 May 2025
1,541 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to excuse a five-month unexplained delay in filing an appeal, so the original employment judgment stands.

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 Nairobi by Kairu, JA, on an application by Francis Ogola Ayoo for leave to file and serve a Notice of Appeal and Record of Appeal out of time, seeking to challenge an ELRC judgment of 20th December 2023 (Gakeri, J.) dismissing his claim for allowances and other dues. The ELRC had held that the 1st respondent was not his employer, that his claim was statute-barred, and that the 2nd and 3rd respondents could not be personally liable for acts done in their official capacities. The applicant explained the delay by claiming he had instructed a clerk, one Kefa, in the firm of Nyandieka & Company Advocates, who never filed the appeal. The 1st and 2nd respondents opposed, contending there was no lawful explanation for the delay, that dealing with a clerk was unlawful under Section 31 of the Advocates Act, and that no draft memorandum demonstrated arguability. Applying the Salat and Fakir Mohamed principles and Abdul Aziz Ngoma, the court found the applicant bore, and had not discharged, the burden of explaining the delay: the notice should have been filed by end of January 2024, and there was no explanation for the period between February and June 2024. Not determining prejudice or prospects of success, the court dismissed the application with costs to the 1st and 2nd respondents. The intended appeal therefore never took off, and the ELRC judgment stands.

Key legal issues

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01

Principles governing extension of time under Rule 4

Holding

The discretion is unfettered but must be exercised judicially; the applicant must explain the delay, address prejudice, arguability and undue delay in bringing the application, with public interest also relevant

Reasoning

The court restated the Salat and Fakir Mohamed principles: extension of time is equitable, case-specific, and requires the applicant to lay a basis to the court's satisfaction. The period and reason for delay, prejudice to respondents, effect on public administration, and compliance with time limits are all relevant factors.

p. 2
02

Sufficiency of the applicant's explanation for the delay

Holding

The explanation that a clerk was instructed was unsatisfactory; there was an unexplained gap between February and June 2024, so the application failed

Reasoning

The notice of appeal should have been filed by end of January 2024 under Rule 77(2). The applicant did not state when he instructed the clerk, and his exhibited chat messages spanned only June-July 2024, leaving February to June 2024 unexplained. Instructing a clerk, an unqualified person under Section 31 of the Advocates Act, was urged to be no lawful excuse. The burden was not discharged.

p. 3
03

Whether prejudice and arguability needed consideration

Holding

Having found no satisfactory explanation for the delay, the court did not consider prejudice or prospects of success, noting no demonstration of the intended grievances

Reasoning

Relying on Abdul Aziz Ngoma, the court held that sufficient reason is a precondition; only after it is established do other considerations arise. The applicant had attached no draft memorandum of appeal, and the ELRC's grounds of dismissal were uncontroverted on the face of the application.

p. 3

Legal principles established

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  • Extension of time is not a right but an equitable remedy; the applicant bears the burden of laying a basis to the satisfaction of the court and explaining the delay
  • Under Rule 4, the court's discretion to extend time arises only once sufficient reason for extension is established; only then may prejudice and prospects of success be considered

Court orders

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  1. 1.The applicant's application dated 30th July 2024 fails and is dismissed
  2. 2.The 1st and 2nd respondents shall have the costs of the application
On appeal from
Employment and Labour Relations Court at Nairobi
Nairobi ELRC Cause No. 270 of 2019
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Francis Ogola Ayoo v Nursing Council of Kenya & 2 others", Case Analysis (2025). Civil Application (Nairobi) - application dated 29th July 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/785/eng@2025-05-09

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