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ELRCAllowedELRC No. E034 of 2025 (Notice of Motion dated 5th February 2025)· [2025] KEELRC 2337 (KLR)

Njeri (Suing on Behalf of the Estate of Everlyne Nyambura Ndungu) v University of Nairobi (Employment and Labour Relations Appeal E033 of 2025) [2025] KEELRC 2337 (KLR)

Employment and Labour Relations Court
30 July 2025
3,691 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court let a late appeal proceed because it raised an arguable issue, despite a weak explanation for the 23-day delay.

What this practically means

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Executive summary

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The applicant, suing on behalf of the estate of the late Everlyne Nyambura Ndungu, sought leave under Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 18 of the ELRC (Procedure) Rules 2024 to file an appeal out of time against a judgment of Hon. Aziza Ajwang (SRM) delivered on 3rd December 2024 in CMELRC No. E886 of 2023, in which the trial magistrate awarded gratuity computed from 1st July 2013 in line with the 2013-2017 CBA. The statutory 30-day period lapsed on 9th January 2025; the application was filed on 5th February 2025, a delay of 23 days. The applicant explained the delay by difficulties in obtaining the decree and argued the intended appeal raised arguable grounds, principally that the trial magistrate used an alien mode of computing gratuity. The respondent opposed, arguing the decree was unnecessary to file a memorandum of appeal, that no request for documents had been made before time lapsed, and that the intended appeal had no prospects because ELRC decisions (University of Nairobi v KUDHEIHA; Bernard Nyamai Ileve) held the 2013-2017 CBA cannot apply retrospectively. Applying the Salat principles and Butt v Rent Restriction Tribunal, the court found the delay not inordinate but the explanation unsound since a decree is not required to file a memorandum of appeal. Nevertheless, finding the gratuity-computation ground arguable, the court granted leave of 60 days to appeal out of time, deemed the memorandum of appeal duly filed, awarded costs of the application to the respondent, and directed mention on 17th September 2025.

Key legal issues

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01

Whether the 23-day delay in filing the appeal was satisfactorily explained

Holding

The delay was not inordinate, but the explanation (awaiting the decree) was not a valid reason since the decree was unnecessary to file a memorandum of appeal

Reasoning

The court applied the Salat principles. It found the 23-day delay not inordinate, noting the court vacation period under Order 50 rule 4. However, it accepted the respondent's argument that a memorandum of appeal requires only the judgment, not the decree, so the applicant's explanation did not amount to good and sufficient cause. Extension was nonetheless granted because the discretion should not be used to prevent an appeal.

p. 7
02

Whether the intended appeal is arguable

Holding

The intended appeal is arguable on the ground that the trial magistrate adopted an alien mode of computing gratuity

Reasoning

The court examined the draft memorandum of appeal and found at least one ground — the alleged erroneous gratuity computation — raised an arguable point, despite the respondent's reliance on ELRC precedent that the 2013-2017 CBA cannot apply retrospectively before 1st July 2013.

p. 7

Legal principles established

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  • Extension of time is a discretionary equitable remedy requiring explanation of the delay, absence of prejudice, and an arguable appeal
  • An applicant for extension of time must show good and sufficient cause and that the justice of the case favours extension, including an arguable appeal
  • The discretion on extension of time should be exercised so as not to prevent an appeal

Court orders

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  1. 1.Leave granted to the applicant to appeal out of time within 60 days
  2. 2.The memorandum of appeal deemed as duly filed
  3. 3.Costs of the application to the respondent
  4. 4.Mention on 17th September 2025 to confirm the status of the appeal and issue further directions

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 79G
  • Employment and Labour Relations Court (Procedure) Rules 2024Rules 12, 15, 18
  • Civil Procedure Rules 2010Order 50 Rules 4 and 6
  • Constitution of Kenya 2010Article 159

Cases cited (8)

  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
  • Eastleigh Route Sacco Ltd & 2 Others v Wairimu
    [2025] KEHC 7523 (KLR)
  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & Others
    [2014] eKLR
  • Kenya Ports Authority v Silas Obengele
    Civil Application No. Nairobi 297 of 2004 [2006] 2 KLR 112
  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
  • Jacqueline Njeri v University of Nairobi
    CMELRC No. E886 of 2023
  • University of Nairobi v KUDHEIHA & 74 Others
    ELRC No. E722 of 2022
  • Bernard Nyamai Ileve v University of Nairobi
    ELRCA No. E047 of 2022
On appeal from
Chief Magistrate's Court (CMELRC No. E886 of 2023, Jacqueline Njeri v University of Nairobi)
CMELRC No. E886 of 2023
Jurisdiction invoked
Rule 18 of the Employment and Labour Relations Court (Procedure) Rules 2024; Sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Order 50 Rule 6 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njeri (Suing on Behalf of the Estate of Everlyne Nyambura Ndungu) v University of Nairobi (Employment and Labour Relations Appeal E033 of 2025) [2025] KEELRC 2337 (KLR)", Case Analysis (2025). ELRC No. E034 of 2025 (Notice of Motion dated 5th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2337/eng@2025-07-30

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