Local Authorities Provident Fund Board of Trustees v Attorney General & 168 others (Civil Appeal (Application) E182 of 2023) [2024] KECA 276 (KLR)

CHARLES MAKINI .................................................................... 16TH RESPONDENT OKIYA OMTATAH OKOITI ..................................................... 17TH RESPONDENT COUNCIL OF GOVERNORS .................................................... 18TH RESPONDENT WATER SERVICES PROVIDERS ASSOCIATION ................. 19TH RESPONDENT COUNTY GOVERNMENT RETIREMENTS SCHEME ........ 20TH RESPONDENT COUNTY GOVERNMENT OF MOMBASA ............................ 21ST RESPONDENT COUNTY GOVERNMENT OF KWALE .................................. 22ND RESPONDENT COUNTY GOVERNMENT OF KILIFI .................................... 23RD RESPONDENT COUNTY GOVERNMENT OF TANA RIVER ....................... 24TH RESPONDENT COUNTY GOVERNMENT OF LAMU .................................... 25TH RESPONDENT COUNTY GOVERNMENT OF TAITA TAVETA .................... 26TH RESPONDENT COUNTY GOVERNMENT OF GARISSA ............................... 27TH RESPONDENT COUNTY GOVERNMENT OF WAJIR .................................... 28TH RESPONDENT COUNTY GOVERNMENT OF MANDERA ........................... 29TH RESPONDENT COUNTY GOVERNMENT OF MARSABIT ........................... 30TH RESPONDENT COUNTY GOVERNMENT OF ISIOLO ................................... 31ST RESPONDENT COUNTY GOVERNMENT OF MERU .................................... 32ND RESPONDENT COUNTY GOVERNMENT OF THARAKA NITHI .............. 33RD RESPONDENT COUNTY GOVERNMENT OF EMBU .................................... 34TH RESPONDENT COUNTY GOVERNMENT OF KITUI .................................... 35TH RESPONDENT COUNTY GOVERNMENT OF MACHAKOS ......................... 36TH RESPONDENT COUNTY GOVERNMENT OF MAKUENI ............................ 37TH RESPONDENT COUNTY GOVERNMENT OF NYANDARUA. ..................... 38TH RESPONDENT COUNTY GOVERNMENT OF NYERI ................................... 39TH RESPONDENT COUNTY GOVERNMENT OF KIRINYAGA ......................... 40TH RESPONDENT COUNTY GOVERNMENT OF MURANG’Á ........................... 41ST RESPONDENT COUNTY GOVERNMENT OF KIAMBU ............................... 42ND RESPONDENT COUNTY GOVERNMENT OF TURKANA ........................... 43RD RESPONDENT COUNTY GOVERNMENT OF WEST POKOT ...................... 44TH RESPONDENT COUNTY GOVERNMENT OF SAMBURU ............................ 45TH RESPONDENT COUNTY GOVERNMENT OF TRANS NZOIA .................... 46TH RESPONDENT COUNTY GOVERNMENT OF UASIN GISHU ...................... 47TH RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keca/2024/276/eng@2024-03-08 2

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COUNTY GOVERNMENT OF ELGEYO/MARAKWET ....... 48TH RESPONDENT COUNTY GOVERNMENT OF NANDI .................................. 49TH RESPONDENT COUNTY GOVERNMENT OF BARINGO ............................. 50TH RESPONDENT COUNTY GOVERNMENT OF LAIKIPIA ............................... 51ST RESPONDENT COUNTY GOVERNMENT OF NAKURU .............................. 52ND RESPONDENT COUNTY GOVERNMENT OF NAROK ................................. 53RD RESPONDENT COUNTY GOVERNMENT OF KAJIADO .............................. 54TH RESPONDENT COUNTY GOVERNMENT OF KERICHO ............................. 55TH RESPONDENT COUNTY GOVERNMENT OF BOMET .................................. 56TH RESPONDENT COUNTY GOVERNMENT OF KAKAMEGA ........................ 57TH RESPONDENT COUNTY GOVERNMENT OF VIHIGA ................................. 58TH RESPONDENT COUNTY GOVERNMENT OF BUNGOMA ........................... 59TH RESPONDENT COUNTY GOVERNMENT OF BUSIA .................................... 60TH RESPONDENT COUNTY GOVERNMENT OF SIAYA ..................................... 61ST RESPONDENT COUNTY GOVERNMENT OF KISUMU ................................ 62ND RESPONDENT COUNTY GOVERNMENT OF HOMABAY ............................ 63RD RESPONDENT COUNTY GOVERNMENT OF MIGORI ................................ 64TH RESPONDENT COUNTY GOVERNMENT OF KISII ....................................... 65TH RESPONDENT COUNTY GOVERNMENT OF NYAMIRA ............................ 66TH RESPONDENT COUNTY GOVERNMENT OF NAIROBI CITY .................... 67TH RESPONDENT NAIROBI CITY WATER & SEWERAGE COMPANY. ........... 68TH RESPONDENT MINISTRY OF WATER & IRRIGATION (NWPC) MOMBASA MUNICIPALITY .......................................................................... 69TH RESPONDENT NZOIA WATER & SANITATION COMPANY ....................... 70TH RESPONDENT NAKURU WATER & SANITATION COMPANY ................... 71ST RESPONDENT NYERI WATER & SEWERAGE COMPANY ........................... 72ND RESPONDENT MATHIRA WATER & SEWERAGE COMPANY .................... 73RD RESPONDENT KISUMU WATER & SEWERAGE COMPANY ....................... 74TH RESPONDENT GARISSA WATER & SEWERAGE COMPANY. ...................... 75TH RESPONDENT AMATSI WATER SERVICES COMPANY ................................ 76TH RESPONDENT WESTERN WATER SERVICES COMPANY ........................... 77TH RESPONDENT OTHAYA MUKUREINI WATER & SANITATION COMPANY .... 78TH RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keca/2024/276/eng@2024-03-08 3

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KIRINYAGA WATER & SANITATION COMPANY ............. 79TH RESPONDENT ELDORET WATER & SANITATION COMPANY ................. 80TH RESPONDENT RURAL NAKURU RURAL WATER & SANITATION COMPANY .... 81ST RESPONDENT GUSII WATER & SANITATION COMPANY ......................... 82ND RESPONDENT MURANG’Á SOUTH WATER & SANITATION COMPANY .... 83RD RESPONDENT KAHUTI WATER & SEWERAGE COMPANY ....................... 84TH RESPONDENT MALINDI WATER & SEWERAGE COMPANY ..................... 85TH RESPONDENT NANYUKI WATER & SEWERAGE COMPANY .................... 86TH RESPONDENT KERICHO WATER & SANITATION COMPANY ................. 87TH RESPONDENT MURANGA WATER & SANITATION COMPANY ............... 88TH RESPONDENT TETU ABERDARE WATER & SANITATION COMPANY ... 89TH RESPONDENT MERUTI WATER SEWERAGE COMPANY ............................ 90TH RESPONDENT OLOOLAISER WATER & SEWERAGE COMPANY ............... 91ST RESPONDENT IMETHA WATER & SANITATION COMPANY .................... 92ND RESPONDENT KAHUTI WATER & SEWERAGE COMPANY ....................... 93RD RESPONDENT EMBE WATER & SANITATION COMPANY ......................... 94TH RESPONDENT TAVEVO WATER & SEWERAGE COMPANY ........................ 95TH RESPONDENT TUURU WATER ASSOCIATION ............................................. 96TH RESPONDENT GATAMATHI WATER & SANITATION COMPANY ............ 97TH RESPONDENT EMBU WATER & SANITATION COMPANY ......................... 98TH RESPONDENT NYAHURURU WATER & SANITATION COMPANY .......... 99TH RESPONDENT NAROK WATER & SEWERAGE COMPANY ...................... 100TH RESPONDENT ISIOLO WATER & SEWERAGE COMPANY ......................... 101ST RESPONDENT LAMU WATER & SEWERAGE COMPANY ......................... 102ND RESPONDENT NANDI KAPSABET NANDI WATER & SANITATION COMPANY ................................................................................. 103RD RESPONDENT SOUTH NYANZA WATER SERVICES COMPANY ............. 104TH RESPONDENT MIKUTRA WATER SERVICES COMPANY ......................... 105TH RESPONDENT KITUI WATER & SANITATION COMPANY ...................... 106TH RESPONDENT YATTA WATER COMPANY LTD ........................................... 107TH RESPONDENT NITHI WATER & SANITATION COMPANY ...................... 108TH RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keca/2024/276/eng@2024-03-08 4

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KWALE WATER & SEWERAGE COMPANY ....................... 109TH RESPONDENT KAPENGURIA WATER & SANITATION COMPANY ....... 110TH RESPONDENT RUMURUTI WATER & SANITATION COMPANY ........... 111TH RESPONDENT OLKALOU WATER & SANITATION COMPANY ............... 112TH RESPONDENT NAIVASHA WATER & SANITATION COMPANY ............. 113TH RESPONDENT MAVOKO EPZA WATER & SEWERAGE COMPANY ......... 114TH RESPONDENT KIBWEZI MITTO WATER & SEWERAGE COMPANY ...... 115TH RESPONDENT MAKINDU WATER & SEWERAGE COMPANY ................. 116TH RESPONDENT UPPER CHANIA WATER SERVICES .................................... 117TH RESPONDENT TACHASIS WATER SUPPLY ................................................... 118TH RESPONDENT NYANDARUA NORTH WATER & SANITATION COMPANY .... 119TH RESPONDENT TARGA – KIAMBERE WATER & SANITATION COMPANY .... 120TH RESPONDENT MUTHAMBI 4K WATER ASSOCIATION ............................. 121ST RESPONDENT VIHIGA DISTRICT WATER OFFICE ................................... 122ND RESPONDENT MT. ELGON DISTRICT WATER OFFICE ............................ 123RD RESPONDENT NYAKANJA WATER SERVICE PROVIDERS SOCIETY ..... 124TH RESPONDENT GITEI WATER SOCIETY ......................................................... 125TH RESPONDENT TIA WIRA WATER PROJECT ............................................... 126TH RESPONDENT ENGINEER TOWN WATER PROJECT ................................ 127TH RESPONDENT MAWINGO WATER SOCIETY PROJECT ............................ 128TH RESPONDENT NDARAGWA WATER PROJECT ........................................... 129TH RESPONDENT KINJA WATER PROJECT ....................................................... 130TH RESPONDENT ELDAMA RAVINE WATER & SANITATION COMPANY .. 131ST RESPONDENT MANDERA WATER & SANITATION COMPANY ............. 132ND RESPONDENT MARALAL WATER & SEWERAGE COMPANY ................. 133RD RESPONDENT LIBOI LOCATION WATER SERVICE PROVIDERS ASSOCIATION .... 134TH RESPONDENT MOYALE WATER & SEWERAGE COMPANY LTD ............ 135TH RESPONDENT NGAGAKA WATER CONSUMERS ASSOCIATION ........... 136TH RESPONDENT NGANDORI/NGINDA WATER CONSUMERS ASSOCIATION .... 137TH RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keca/2024/276/eng@2024-03-08 5

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TANA RIVER BOREHOLES & SANITATION COMPANY 138TH RESPONDENT DOM KATHITA GATUNGA WATER SOCIETY ................. 139TH RESPONDENT DOM RUIRU THAU WATER ASSOCIATION .................... 140TH RESPONDENT NGARIAMA/NJUKIINI WATER ASSOCIATION ............... 141ST RESPONDENT KATHITA KIIRUA (CEFA) WATER ASSOCIATION .......... 142ND RESPONDENT MURUNGI MUGUMANGO WATER SOCIETY .................. 143RD RESPONDENT TANA RIVER MINISTRY OF WATER AND IRRIGATION HOLA TANA RIVER ......................................................................................... 144TH RESPONDENT KILIFI-MARIAKANI WATER & SEWERAGE COMPANY 145TH RESPONDENT NOL TURESH BULK WATER COMPANY .......................... 146TH RESPONDENT MACHAKOS WATER & SEWERAGE COMPANY .............. 147TH RESPONDENT KARIMENU WATER & SEWERAGE COMPANY ............... 148TH RESPONDENT THIKA WATER & SEWERAGE COMPANY ........................ 149TH RESPONDENT MATUNGULU WATER & SEWERAGE COMPANY ........... 150TH RESPONDENT KANGUNDO WATER & SEWERAGE COMPANY .............. 151ST RESPONDENT KIKUYU WATER & SEWERAGE COMPANY ..................... 152ND RESPONDENT GATUNDU WATER & SEWERAGE COMPANY ................. 153RD RESPONDENT KARIMENU WATER & SEWERAGE COMPANY ............... 154TH RESPONDENT RUNDA WATER & SEWERAGE COMPANY ...................... 155TH RESPONDENT WAMUYA WATER & SEWERAGE COMPANY ................... 156TH RESPONDENT OLKEJUADO WATER & SEWERAGE COMPANY ............. 157TH RESPONDENT KIAMBU WATER & SEWERAGE COMPANY ..................... 158TH RESPONDENT GITHUNGURI WATER & SANITATION COMPANY ....... 159TH RESPONDENT LIMURU WATER & SEWERAGE COMPANY ..................... 160TH RESPONDENT GATANGA WATER & SEWERAGE COMPANY .................. 161ST RESPONDENT RUIRU-JUJA WATER & SEWERAGE COMPANY .............. 162ND RESPONDENT BOYA WATER PROJECT ........................................................ 163RD RESPONDENT AHONO SINAGA WATER PROJECT ................................... 164TH RESPONDENT NYANAS WATER & SANITATION COMPANY .................. 165TH RESPONDENT GULF WATER & SANITATION COMPANY ........................ 166TH RESPONDENT NYASARE WATER SUPPLY ASSOCIATION ....................... 167TH RESPONDENT CHRISTINE SONGO ................................................................ 168TH RESPONDENT https://new.kenyalaw.org/akn/ke/judgment/keca/2024/276/eng@2024-03-08 6

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COUNTY EXECUTIVE COMMITTEE MEMBER FINANCE COUNTY GOVERNMENT OF KAKAMEGA ......................................... 169TH RESPONDENT (An application seeking orders that the time within which to serve the Notice of Appeal dated 25th January 2023 be extended to 5th April 2023; that the Notice of Appeal dated 25th January 2023 and served electronically on 5th April 2023 be deemed as properly served; that the time to serve the Record of Appeal dated 25th March 2023 be extended to 4th April 2023; and that the Record of Appeal dated 25th March 2023 and served electronically on 4th April 2023 be deemed as properly served; and that the costs of the application be costs in the appeal) RULING 1. In its notice of motion dated 18th April 2023, the appellant/applicant Local Authorities Provident Fund Board of Trustees seeks orders that the time within which to serve the Notice of Appeal dated 25th January 2023 be extended to 5th April 2023; that the notice of appeal dated 25th January 2023 and served electronically on 5th April 2023 be deemed as properly served; that the time to serve the record of appeal dated 25th March 2023 be extended to 4th April 2023; and that the record of appeal dated 25th March 2023 and served electronically on 4th April 2023 be deemed as properly served; and that the costs of the application be costs in the appeal. 2. Aggrieved by the judgment of the Employment and Labour Relations Court (ELRC) delivered on 20th December 2022, the applicant filed a notice of appeal dated 25th January 2023 which was duly served on some of the respondents and belatedly on others. Subsequently, the applicant lodged its memorandum and record of appeal dated 25th March 2023. Based on the memorandum of appeal, the applicant intends to challenge that judgment on the grounds, among others, that it was made without jurisdiction to the extent that the dispute was for determination of the constitutionality of the County Government Retirement Scheme Act, 2019 which according to the applicant is not a dispute within article 162 of the Constitution and section 12 of the Employment and Labour Relations Court Act. 3. I heard the application on 21st November 2023. The parties were represented by learned counsel as follows: Mr. Ngatia, SC appeared for the applicant. Miss. Mbilo appeared for the 1st and 2nd respondents. Mr. Munene appeared for the 3rd respondent. Dr. Thiankolu appeared with Ms. Jeruto for the 5th and 6th respondents. Mr. Okeyo appeared for the 7th respondent. Miss. Ngigi held brief for Miss. Olendo for the 24th respondent. Ms. Maritim appeared for the 56th and 169th respondents. Mr. Mutembei appeared for the 62nd respondent. Mr. Omtatah, the 17th respondent appeared in person. 4. At the onset of the hearing, Dr. Thiankolu pointed out that his clients, the 5th and 6th respondents filed an application, also dated 18th April 2023, seeking an order to strike out the appeal. He sought adjournment of the present application so that his clients’ application and the present application could be heard together. I however declined that request considering that the application for extension of time under rule 4 of the Court of Appeal Rules is a single Judge application whereas the application to strike out the appeal should be heard by the full court. 5. Based on the grounds set out on the face of the application; the affidavits in support of the motion sworn by Fredrick Ngatia advocate, Alex Kimele Mwanzi, process server and Andrew Onyango, a court clerk in the firm of Ngatia & Associates Advocates and the submissions by learned counsel, the basis on which extension of time is sought is that the notice of appeal was filed on time on 25th January 2023; that on the following day, 26th January 2023, it was entrusted on the process server Alex Kimele Mwanzi https://new.kenyalaw.org/akn/ke/judgment/keca/2024/276/eng@2024-03-08 7

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to effect service; that Mr. Mwanzi effected service on some of the parties and not on others; that it was not until 5th April 2023 when the 6th respondent requested for a copy of the notice of appeal from the applicant’s advocates that it dawned on Mr. Ngatia that some of the parties may not have been served; and that thereupon Mr. Ngatia sent out the notice of appeal, by electronic mail, to all the parties. At the same time, Mr. Ngatia embarked on investigating whether the process server, Mr. Mwanzi, had indeed effected service on all the parties. He dispatched his Court Clerk, Andrew Onyango to establish the position. 6. Andrew Onyango deposed that he traced the Process Server Alex Kimele Mwanzi to his home in Mulindi Village in Kitui on 6th April 2023; that Mwanzi informed him that he had only managed to serve four parties with the notice of appeal before receiving news of the sudden and mysterious death of his uncle and that Mwanzi forgot to inform the advocates of his predicament on account of the family issues that he was dealing with in connection with his uncle’s death. 7. Alex Kimele Mwanzi deponed in his affidavit that having been contacted by the secretary to the firm of Ngatia & Associates on 26th January 2023, he on the same day collected the notices of appeal with instructions to serve on all the parties; that on 27th and 30th January 2023 he managed to serve some of the parties; that on the evening of 31st January 2023, before he had completed serving the notice of appeal, he received news of the death of his uncle and left Nairobi for Kitui “in a state of shock and mental anguish”; that in the days that followed he was engaged in the burial preparations as well as in efforts to establish the cause of death of his uncle and overlooked informing the applicant’s advocates what had transpired; that he subsequently gave the notices of appeal to Andrew Onyango when he (Onyango) went to his home in Kitui on 6th April 2023. 8. Regarding the record of appeal, Mr. Ngatia deponed that the same was prepared in time and lodged in court on 25th March 2023 and on the assumption that the process server had already served the notice of appeal, he thereafter instructed his Clerk, Andrew Onyango, to effect physical service of the record of appeal on all counsel in the matter; that the 7 days prescribed for service of the record of appeal lapsed on 1st April 2023 and given that counsel on record for the parties were situated in different parts of Nairobi and Nakuru, it was not possible to serve the record of appeal on all of them within the specified period; that ultimately he resolved to serve the record electronically which he did on 4th April 2023. On his part, Mr. Onyango deponed that on 4th April 2023, he informed Mr. Ngatia that despite exerting himself, he was not able to physically serve the record of appeal on all counsel in the matter. 9. The application is supported by Ms. Mbito for the 1st and 2nd respondents and by Mr. Okiya Omtatah on grounds that the delay involved is not inordinate and the reasons given are plausible; that there is a similar appeal by the Attorney General and the matter is weighty and concerns many employees and public interest will be served. 10. The application is opposed by the 5th and 6th respondents; 7th respondent; 19th respondent; the 24th and 62nd respondents; 56th and 169th respondents; 148th respondent. 11. The grounds on which the application is opposed are represented in the replying affidavit of Kimutai Hosea Kili, Secretary of the Boards of Trustees of the 5th and 6th respondents and the forceful submissions by Dr. Muthomi Thiankolu. It is urged that the service of the notice of appeal on 5th April 2023 was out of time by 62 days and even then service was only effected after the respondents raised issue with service while the record of appeal was late by two days and twenty-three hours; that application for extension of time was a re-action to the application to strike out the appeal; that there was also delay of 13 days in filing https://new.kenyalaw.org/akn/ke/judgment/keca/2024/276/eng@2024-03-08 8

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the present application; that the delay involved “betrays a nonchalant or haughty attitude of persisting in indolence and latches”. 12. It was urged that the Court’s discretion should not be exercised in favour of the applicant because: the 4th respondent’s notice of appeal was struck out at the instance of the applicant; that in the interest of fair and orderly administration of justice litigants should be treated equally; that on the strength of the Supreme Court decision in County Executive of Kisumu vs. County Government of Kisumu & 8 others, Civil Application No. 6 of 2016, [2017] eKLR there is no basis for regularizing an illegality or irregularity by deeming belated pleadings as properly served; that the affidavits in support of the application are contradictory and the explanations given are bizarre; that the applicant’s firm has a recent history of inexcusable failure to serve notices of appeal; and that the applicant has not met the legal threshold for the Court to exercise its discretion in its favour. Mr. Munene, Ms. Maritim, Mr. Okeyo, Miss. Ngigi joined Dr. Thiankolu in opposing the application. 13. I have considered the application and the material presented in support and in opposition to the same. The principles on which applications of this nature are considered are established. In the case of Fakir Mohammed v Joseph Mugambi & 2 others [2005] eKLR (Civil Application No. Nai 332 of 2004 (Nyr 32/04)) Waki, JA expressed that: “ The exercise of this court’s discretion under rule 4 has followed a well-beaten path since the stricture of “sufficient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possible) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factor.” 14. Subsequently, and in the same vein, the Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, Supreme Court Application No. 16 of 2014 [2014] eKLR pronounced that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; that delay should be explained to the satisfaction of the court; whether there will be prejudice suffered by the respondents if the extension is granted; whether the application is brought without undue delay; and public interest should be a consideration. 15. Guided by those principles, I have considered the application, the affidavits, and the submissions. Under rule 77 of the Court of Appeal Rules, the applicant had 14 days within which to file the notice of appeal. There is no contest that the notice of appeal was filed within time. Having filed the notice of appeal on the 25th January 2023, the applicant had 7 days under rule 79(1) to serve the notice of appeal. Under rule 84, the memorandum and record of appeal should have been filed within 60 days after the date when the notice of appeal was lodged. Under rule 92(1) the memorandum and record of appeal should have served within 7 days after lodging. 16. As already indicated the impugned judgement was delivered on 20th December 2022. The notice of appeal was lodged on 25th January 2023. Whereas it was served physically on some of the respondents on time, it was not served on others until 5th April 2023. At the latest, the notice of appeal should have been served by 1st February 2023. Thus, a delay of 62 days in serving those not physically served. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/276/eng@2024-03-08 9

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17. Was that delay satisfactorily explained? Having entrusted the notice of appeal on the process server on 26th January 2023, the applicant’s advocates should in my view have followed up with the process server to ascertain whether service had duly been effected. As it is, the opposing respondents are justified in complaining that there was a lapse on the part of the advocates and that they went into slumber after entrusting the notice of appeal on the process server. Whereas there is an explanation by the process server and the court clerk as to why there was no prompt return of service or communication in that regard, there is no explanation why the advocates for the applicant did not follow up with the process server and only woke up to the reality when a request for the notice of appeal was made by counsel for the 5th and 6th respondents. That said, Mr. Ngatia was candid that there was a mistake in not doing so. 18. Regarding service of the memorandum and record of appeal, the delay involved is two days. The explanation given for that delay is that the applicant had opted for physical service on the respondents but given the number of parties to be served and their locations, the process server was unable to complete service within the time permitted under the Rules and resort was had, belatedly, to service by electronic mail. 19. Clearly, the applicant’s advocates were less than vigilant in their handling of service of the notice of appeal and of the record of appeal on the respondents. Why they opted for physical service in the first place only to resort to service by electronic mail when they were out of time is not clear. 20. Madan, JA, had this to say of mistakes by a lawyer in the case of Belinda Murai & 9 others v Amos Wainaina [1979] eKLR: “ A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.” 21. I am in the circumstances of this case reluctant to shut out the applicant on account of the mistakes by their counsel. Based on the grounds raised in the memorandum of appeal, the matter raises a matter touching on public interest namely the constitutionality of the County Governments Retirement Scheme Act 2019, and the jurisdiction of the lower court. In University of Nairobi v Kevin Mbwaya & 62 others [2018] eKLR, I considered, as I do here, that public importance is a relevant consideration in applications of this nature. Moreover, it has not been demonstrated that the opposing respondents stand to suffer prejudice which cannot be adequately compensated by an award for costs if the application for extension of time is allowed. 22. I am also not persuaded that I should decline the application based on ‘the principle of an eye for an eye’; that because the applicant moved the court to strike out a notice of appeal by one of the respondents, granting the applicant’s application would be unfair. The facts and circumstances under which that application was made or allowed are not matters before me. 23. In the end, I allow the application dated 18th April 2023 to the extent that I hereby extend the time within which the applicant should serve the notice of appeal dated 25th January 2023 and the record of appeal dated 25th March 2023. The applicant shall do so within 14 days from the date of delivery of this ruling. 24. The 5th, 6th, 19th, 24th, 56th, 62nd, 119th, 148th and 169th respondents will have the costs of this application. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/276/eng@2024-03-08 10

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DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF MARCH, 2024. S. GATEMBU KAIRU, FCIArb ...................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2024/276/eng@2024-03-08 11

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