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ELRCDismissedNot stated in the ruling (ruling on the 4th Respondent/Applicant's Notice of Motion dated 11th March 2024)· [2025] KEELRC 1980 (KLR)

Barasa v Public Service Board County Government of Trans-Nzoia & 4 others (Petition 2 of 2022) [2025] KEELRC 1980 (KLR)

Employment and Labour Relations Court
3 July 2025
MOM. ONYANGO
1,309 words in judgment
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The bottom line

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A Kenyan court refused a party extra time to appeal because it delayed three months without a believable excuse and had not acted honestly.

What this practically means

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Executive summary

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This ruling by M. Onyango J dealt only with prayer 6 of a Notice of Motion dated 11th March 2024 filed by the 4th Respondent/Applicant seeking enlargement of time within which to lodge and serve a Notice of Appeal and lodge the appeal, the other prayers having been spent. The Applicant, aggrieved by the court's judgment delivered on 30th November 2023, attributed the delay to the indolence and unresponsiveness of its erstwhile counsel, and contended that the intended appeal raised substantial constitutional and legal issues and was arguable. The application was supported by an affidavit of Truphosa Ambere, the Applicant's Country Secretary, and opposed by the 1st Respondent through a replying affidavit of its Chairman, Peter M. Wamoto, who argued that the court lacked jurisdiction, as leave to appeal out of time lay only with the Court of Appeal, and that the Applicant had long been aware of the judgment. The court first held that it had jurisdiction, applying Section 7 of the Appellate Jurisdiction Act and the Kenya Airports Authority v Mutungi decision. On the merits, applying the Leo Sila Mutiso criteria and Salat v IEBC, the court found the three-month delay inordinate and poorly explained, took the view that the Applicant was not truthful in blaming counsel given contempt proceedings against its officers, doubted the appeal's viability, and held the Applicant had not come to court with clean hands. The application was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Jurisdiction to grant extension of time to lodge a Notice of Appeal out of time

Holding

The court has jurisdiction to entertain the application; extension of time for giving notice of appeal from a High Court judgment may be granted by the High Court under Section 7 of the Appellate Jurisdiction Act

Reasoning

The 1st Respondent argued that only the Court of Appeal could grant leave to appeal out of time. The court relied on Section 7 of the Appellate Jurisdiction Act, which empowers the High Court to extend time for giving notice of intention to appeal from a judgment of the High Court notwithstanding expiry of the time, and on the Court of Appeal's decision in Kenya Airports Authority & Another v Timothy Nduvi Mutungi confirming that such an application is properly made in the High Court.

p. 2
02

Whether the Applicant made out a case for extension of time

Holding

No; the delay of over three months was inordinate, the explanation blaming erstwhile counsel was not credible, the Applicant did not come with clean hands given contempt proceedings against its officers, and the viability of the intended appeal was in doubt

Reasoning

Applying the Mutiso criteria (length and reason for delay, chances of success, prejudice), the court found the delay of over three months inordinate and unexplained. The court was aware of acts of contempt against its judgment committed by the Applicant's officers, showing the Applicant was 'not being generous with the truth' in blaming counsel. Citing Salat v IEBC, extension of time is not a party's right. The court also doubted whether the appeal remained viable given subsequent developments.

p. 3

Legal principles established

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  • The High Court has power under Section 7 of the Appellate Jurisdiction Act to extend time for giving notice of intention to appeal even where the time has expired
  • Extension of time is not a right of a party; the reason for the delay must be explained to the satisfaction of the court, considering the length of and reason for delay, chances of success and prejudice
  • A party seeking discretionary orders must come to court with clean hands

Court orders

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  1. 1.The application dated 11th March 2024 is dismissed with costs to the 1st Respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7

Cases cited (3)

  • Kenya Airports Authority & Another v Timothy Nduvi Mutungi
    Civil Application No. NAI 165 of 2013 (UR 113/2013) [2014] eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 255 of 1997 (unreported)
  • Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] KESC 12 (KLR)
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (power of the High Court to extend time for giving notice of intention to appeal)

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, "Barasa v Public Service Board County Government of Trans-Nzoia & 4 others (Petition 2 of 2022) [2025] KEELRC 1980 (KLR)", Case Analysis (2025). Not stated in the ruling (ruling on the 4th Respondent/Applicant's Notice of Motion dated 11th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1980/eng@2025-07-03

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