Mark Onyango Njoga v Nairobi City Water & Sewerage Company Limited
The bottom line
#Kenya's Court of Appeal extended time for an employee's delayed appeal because court delays, not the employee, caused the late filing.
What this practically means
#Executive summary
#Key legal issues
#Explanation for delay
The delay was occasioned by the late issuance of typed proceedings and Certificate of Delay, not by the Applicant's indolence, and was satisfactorily explained.
The judgment sets out a documented chronology: judgment delivered 19th March 2025; Notice of Appeal lodged 2nd April 2025 within time with a request for typed proceedings; certified copies issued 5th June 2025; typed proceedings and Certificate of Delay availed 21st June 2025; Record of Appeal filed 24th June 2025. The court found the explanation corroborated by documentary evidence and within Rule 84.
Competence of the Record of Appeal (unendorsed Notice of Appeal)
The objection was noted but not determined; a single Judge on a Rule 4 application cannot rule on jurisdictional competence, which is reserved for the full bench.
The Respondent relied on Asiligwa v Baumgartner, where failure to properly lodge a Notice of Appeal was held fatal. The court acknowledged that authority but held its own remit confined to whether sufficient cause for extension was shown, deferring the competence question to the full bench.
Arguability of the intended appeal
The intended appeal raises genuine issues on entitlement to dues withheld during suspension, continuity of employment rights and successor-employer liability, and is therefore arguable.
The Applicant relied on George Mwangi Karuga, where employees transferred from the defunct Nairobi City Council to the Respondent were held entitled to certain dues; the ELRC allegedly failed to award dues for January–June 2011 despite that precedent. The court found this a bona fide issue of law and fact meeting the arguability threshold.
Prejudice to the Respondent
No tangible prejudice was demonstrated beyond technical objections; any inconvenience can be compensated by costs.
Applying Salat, extension of time is an equitable remedy requiring a balance between the right of appeal and prejudice to the respondent. The Respondent showed no irreparable harm from admitting the appeal, so prejudice did not outweigh the Applicant's right to be heard on the merits.
Legal principles established
#- The Rule 4 discretion is unfettered but must be exercised judiciously, guided by length of delay, reasons for delay, arguability of the intended appeal and prejudice to the respondent.
- Arguability does not require the appeal to succeed; it suffices that it raises at least one bona fide issue deserving consideration.
- Prejudice to a respondent must be real, substantial and not merely speculative; inconvenience may be compensated by costs.
- A single Judge deciding a Rule 4 extension-of-time application may not determine questions going to the competence of the appeal or the Court's jurisdiction; those are reserved for the full bench.
Court orders
#- 1.Time for filing the appeal is extended
- 2.The Record of Appeal and Memorandum of Appeal filed on 24th June 2025 are deemed duly filed and properly on record, subject to payment of all requisite filing charges
- 3.The Appellant is directed to regularize any other filings for purposes of the appeal within thirty (30) days from the date of the ruling
- 4.Costs shall abide by the outcome of the appeal
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9, and Rules 4 and 84 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mark Onyango Njoga v Nairobi City Water & Sewerage Company Limited", Case Analysis (2026). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/943/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.