Climate and Energy Advisory Limited v Mwenda (Civil Application E124 of 2025) [2025] KECA 1553 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal because a lawyer's mistake shouldn't cost a litigant its right to appeal.
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 extension of time to file the notice of appeal and letter requesting proceedings out of time
- 2.Whether the notice of appeal and letter requesting proceedings dated 23rd January 2025 should be deemed properly filed and served
- 3.Whether the delay of about 15 days was inordinate and sufficiently explained
- 4.Whether the intended appeal is arguable
- 5.Who should bear the costs of the application
Key legal issues
#Extension of time to file a notice of appeal out of time
The application for extension of time was granted; the delay of about 15 days was held not inordinate and properly explained, the intended appeal arguable, and the notice of appeal deemed properly filed.
Applying the settled Sila Mutiso principles, the court weighed the length of and reason for the delay (about 15 days, attributable to the former advocates' failure), the arguability of the jurisdictional ground in the draft memorandum, and the balance between the successful respondent's interests and the applicant's constitutional right of appeal, concluding the application was meritorious.
Whether a mistake by a former advocate should defeat an intending appellant
No. Denying the applicant the chance to appeal on account of its former advocate's failure to lodge the notice of appeal would be unjust.
The applicant had initially instructed Kamau, Lando & Associates LLP, which failed to lodge a notice of appeal; the court held that a litigant should not be denied its constitutional right of appeal because of the former advocate's mistake, and that the ensuing delay was neither inordinate nor unexplained.
Arguability of the intended appeal
The draft memorandum raised arguable issues, particularly whether the ELRC had jurisdiction over a dispute where no employer/employee relationship existed.
The court examined the draft memorandum of appeal and found the jurisdictional challenge arguable: the trial court had itself held that from 1st January 2018 the respondent was an independent contractor, yet awarded damages for premature termination of the contract, raising a live question of the ELRC's jurisdiction over a purely contractual dispute.
Legal principles established
#- In determining whether to extend time, the Court of Appeal considers the length of the delay, the reason for the delay, the arguability of the intended appeal, and the degree of prejudice to the respondent.
- A litigant should not be denied the right of appeal because of a mistake committed by its former advocate, in the exercise of the court's discretion.
- The court's discretion in extension-of-time applications must balance the interests of the successful party against the intending appellant's constitutional right of appeal.
Court orders
#- 1.The notice of appeal and letter requesting proceedings both dated 23rd January 2025, filed on 24th January 2025 and 28th January 2025 respectively, are deemed as properly filed and served
- 2.Extension of time granted; the application found meritorious and the orders sought granted
- 3.Each party shall bear its own costs of the application
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)
- Not stated in the judgment
- Jurisdiction invoked
- Rules 4, 77(2), 79(1) and 84(1) of the Court of Appeal Rules (extension of time and deemed filing of notice of appeal)
Relief refused
#Respondent's request that the application be dismissed for inordinate delay and unclean hands
The court found the delay was not inordinate and was properly explained, attributing the lapse to the applicant's former advocates
Costs
Each party shall bear its own costs of the application.
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.
In determining whether to extend time, the court takes into account the length of the delay; the reason for the delay; the chances of the appeal succeeding if the application is granted; and the degree of prejudice that may be occasioned to the respondent if the application is granted.
To deny the applicant the opportunity to pursue its constitutional right of appeal because of a mistake committed by its former advocate would be unjust.
Consequently, I find the application meritorious and grant the orders sought. Each party shall bear its own costs of the application.
Issues in the judgment
#The judgment refers to a trial court judgment dated 14th March 2024 and a ruling dismissing the extension-of-time application dated 23rd January 2025, but the decision appealed from is described inconsistently (the notice of appeal was lodged only after the ruling, not the judgment); the sequencing of the appeal in relation to the two decisions below is not clearly explained.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Climate and Energy Advisory Limited v Mwenda (Civil Application E124 of 2025) [2025] KECA 1553 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1553/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.