Republic v Public Service Commission & another; Kirinyaga County Public Service Board (Exparte Applicant) (Judicial Review E003 of 2023) [2025] KEELRC 70 (KLR)

Applying the Salat and Pan African Paper Mills principles, the court weighed the length and reason for the delay, the burden of explanation, and prejudice. The delay was only one day, but the applicant had waited until the last moment, the alleged CTS downtime was not evidenced by the Judiciary ICT department, no proof of contact with ICT officers was given, and the screenshot annexure RW1 was unauthenticated under section 106B of the Evidence Act and lacked date/time details. The Respondent's members would be prejudiced by further delay while the applicant's delay was attributable to its own negligence.

The court held that because decisions of the ELRC are appealable to the Court of Appeal under the Appellate Jurisdiction Act and its Rules, Section 7 governs extensions of time for notices of appeal to the Court of Appeal. It relied on Kenya Airports Authority v Timothy Nduvi Mutungi where Githinji JA confirmed the High Court's power. The applicant's reliance on Rule 18 of the ELRC Procedure Rules 2024 was therefore misplaced, as that rule concerns appeals to the ELRC, not to the Court of Appeal.

Both parties submitted on whether the intended appeal was arguable, but the judge took the view that this question is best left to the appellate court since the extension application had already failed on the inexcusable delay. This did not affect the outcome, which turned on the explanation for the delay and the burden and standard of proof regarding the alleged CTS system failure.