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ELRCAllowedNot stated in judgment· [2025] KEELRC 2756 (KLR)

Nyaga & 78 others v Barclays Bank of Kenya Limited (Cause 1122 of 2018) [2025] KEELRC 2756 (KLR)

Employment and Labour Relations Court
9 October 2025
CBC. N. BAARI
1,446 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment and Labour Relations Court allowed late filing of an appeal where a lawyer's innocent mistake in paying court fees caused the delay.

What this practically means

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Executive summary

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The Claimants/Applicants moved the Employment and Labour Relations Court by Notice of Motion dated 28th February 2025, anchored on Articles 48, 50(1) and 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking extension of time to lodge a Notice of Appeal out of time against the judgment of Rika J delivered on 12th November 2024 dismissing their Amended Claim with costs, and that the Notice of Appeal dated 14th November 2024 and letters bespeaking typed proceedings be deemed properly filed. The applicants explained that their counsel inadvertently failed to pay the filing fees when uploading the Notice of Appeal and only discovered the omission on 27th February 2025, whereupon the fees were promptly paid. The Respondent opposed via grounds of opposition, citing the over three-month delay, non-payment of fees at lodgement, failure to serve the Notice of Appeal contrary to Rule 77(1) of the Court of Appeal Rules, failure to copy its advocates on the bespeaking letter, and abuse of process. The court, Baari J, framed one issue: whether the applicants deserved the orders sought. Relying on Section 79G of the Civil Procedure Act and the Salat principles (length of delay, reasons, arguability, prejudice), and authorities holding that an advocate's mistake may constitute good and sufficient cause, the court found the applicants had laid a sufficient basis and that the respondent would suffer no prejudice. The application was allowed with costs abiding the appeal.

Key legal issues

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Whether extension of time should be granted where counsel inadvertently failed to pay filing fees for the Notice of Appeal

Holding

The application was allowed; the applicants sufficiently laid a basis for extension and the respondent demonstrated no prejudice.

Reasoning

The court applied Section 79G of the Civil Procedure Act and the Salat principles. Although the delay was about three months, the Notice of Appeal was lodged the day after judgment and the failure was counsel's inadvertent non-payment of fees. On realising the omission the applicants promptly paid the fees, an uncontroverted fact. An advocate's mistake may constitute good and sufficient cause, and the respondent showed no prejudice. Time was therefore enlarged and the notice deemed filed.

p. 3

Legal principles established

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  • Enlargement of time is an equitable remedy, not a right; the applicant bears the burden of satisfying the court that the application merits the exercise of discretion.
  • The guiding principles are the length of and reasons for the delay, the chances of the appeal succeeding, and prejudice to the Respondent.
  • A litigant may in common practice be excused for a mistake or oversight on the part of counsel.

Court orders

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  1. 1.An order extending time for the Applicants to file an Appeal out of time against the Judgment delivered on 12th November 2024 through payment of the requisite Court fees
  2. 2.The Notice of Appeal dated 14th November, 2024 deemed duly filed
  3. 3.Costs shall abide the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Court of Appeal RulesRule 77(1)
  • Court of Appeal RulesRule 82(1)

Cases cited (3)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    SC Application No. 16 of 2014 (2014) eKLR
  • Alibhhai Musajee v Sharifi Mohammed Al-Bet
    Civil Appeal No. 283 of 1998
  • Kariuki v Wangeci & 7 others
    Civil Application E250 of 2023 [2024] KECA 1692 (KLR) (22 November 2024)
Jurisdiction invoked
Articles 48, 50(1) and 159 of the Constitution of Kenya; Sections 1A, 1B, 3A of the Civil Procedure Act and Order 51 Rule 1 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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Cite this brief

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Cite this brief

Caselaw, "Nyaga & 78 others v Barclays Bank of Kenya Limited (Cause 1122 of 2018) [2025] KEELRC 2756 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2756/eng@2025-10-09

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