Benson Bwire Odhiambo v Columbia Developers (K) Limited

the even date. The applicant avers that the judgment in the Page 2 of 7

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Employment and Labour Relations Court was delivered on 19th December, 2024. He filed his notice of appeal on 27 th December, 2024 and duly requested for typed proceedings. He was supplied with the proceedings and certificate of delay on 31st July, 2025. Further, he avers that he prepared the record of appeal and when he presented the same for filing on 25th September 2025, the fees was assessed at Kshs.101,500/-, which he states he was unable to raise immediately due to financial hardship occasioned by the prolonged and continuing non-payment of salary by the respondent. That it was not until 13 th October, 2025 that he was able to secure a loan from a friend and paid the filing fees. That thereafter on 15th October, 2025 he served the record of appeal upon the respondent. The applicant avers that the delay in paying the fees was therefore not deliberate but due to circumstances beyond his control. 3. The applicant avers that the delay in filing the appeal was inadvertent and was not inordinate in the circumstances, being approximately 14 days from 29 th September, 2025, being the 60th day after receipt of typed proceedings. He urges that the delay be found excusable. 4. The applicant avers that his intended appeal is arguable and raises serious issues of law and fact and has overwhelming chances of success. Further, that the respondent shall not suffer any prejudice if the orders sought is granted. The Page 3 of 7

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applicant urges this Court to allow the application and have the appeal be heard and determined on merit. 5. The application is unopposed as the respondent has not filed its response. I also note that although served with a hearing notice by this Court’s registry via email on 29th May, 2026 at 1.09 p.m. and reminded to comply with directions on filing of submissions, both parties filed none. 6. The principles that guide the Court in the exercise of its mandate under rule 4 of the Rules has now been crystallized by case law. In general, the matters which a Court takes into account in deciding whether to grant an extension of time are; inter alia, the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent if the application is granted. See. Leo Sila Mutiso vs. Hellen Wangari Mwangi [1999] 2 EA 231, Salat vs. IEBC & 7 Others [2014] KESC 12 (KLR), and Anti-Counterfeit Authority vs. Francis John Wanyange & 4 Others [2021] KECA 381 (KLR). 7. The judgment the subject of the intended appeal was delivered on 19th December, 2024. The applicant filed a notice of appeal on 27th December, 2024 in compliance with rule 77(2) of the Rules which requires a notice of appeal to be filed within fourteen (14) days from the date of judgment. The record of appeal was required under rule 84(1) to be Page 4 of 7

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lodged within sixty (60) days after the date when the notice of appeal was lodged. Page 5 of 7

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As at the time of filing the instant application, that is 14 th April, 2026, it was about one (1) year four (4) months from the date of filing the notice of appeal. 8. The applicant has given two main reasons for the delay being; the time taken to be supplied with certified copies of the proceedings, and the financial constrain he had in raising the court filing fees for the appeal. The applicant, other than stating that he requested for the typed proceedings, which he avers was supplied to him together with a certificate of delay on 31st July, 2025, he has not availed a copy of the letter requesting for typed proceedings. Further, he has not availed a copy of the certificate of delay nor has he given any explanation for that failure. In the circumstances, the applicant has not met the requirement of the proviso to rule 84(2) of this Court’s Rules having failed to produce evidence indicating that he served a copy of the request for proceedings upon the respondent, nor has he produced a certificate of delay duly signed by the Registrar of the court. 9. On the financial constrain, in the case of Francis Mwai Karani vs. Robert Mwai Karani [2007] KECA 308 (KLR) this Court held as follows: “I must make it abundantly clear at the outset that lack of money or impecuniosity on the part of an applicant cannot and has never been accepted as a valid reason for extending time to lodge an appeal. But as has always been said, each case must be looked at on its own facts and that is Page 6 of 7

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exactly what I am doing in this application. In other words, I am not establishing any new principle different from the well known one that lack of financial resources is generally not a basis for extending time.” 10. The applicant avers that when he presented the record of appeal for filing on 27th September, 2025 the fees were assessed at Kshs.101, 500/-, which he did not immediately have, and it was until 13 th October, 2025 when he secured the money and paid the court fees. Other than saying that he was not receiving any salary from the respondent, he has not produced any evidence to support his averment. 11. Even if I was to agree with the applicant that he received the typed proceedings on 31st July, 2025 and that the sixty (60) days started to run from that date, the applicant had up to 29th September, 2025 to file his record of appeal. The applicant avers that he filed the record on 13 th October, 2025, fourteen (14) days after the lapse of sixty (60) days. In addition, even if I was to say the delay was not inordinate, the applicant filed the instant application on 14 th April, 2026, 6 months from the date of lodging his record of appeal. He has not given any explanation for this further delay. 12. In Francis Mwai Karani vs.Robert Mwai Karani (supra) this Court held that; Page 7 of 7

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“What are the circumstances herein? The judgment the applicant proposes to appeal against was delivered on 28th June, 2006 and on 30th June, 2006, the applicant lodged his notice of appeal. From what he tells me, he was supposed to lodge his record of appeal by 30 th August 2006; he did not do so but he did not just sit idly by. On 31st August, 2006, he lodged the present motion for extension of time… Clearly the applicant was aware of the requirements for appealing and he complied with virtually all of them except the important one of lodging the appeal. One day after the time had lapsed he moved to Court asking for extension…” 13. In Gichuru vs. Attorney General; Court of Appeal of Kenya (Interested Party) [2024] KECA 150 (KLR) this Court held as follows: “It is trite that there is no maximum or minimum period set out under the law. However, a prolonged and inordinate delay is more likely than not to disentitle the applicant to the leave. Likewise, the reason or reasons for the delay must be reasonable and plausible. 14. Further, in the County Executive of Kisumu vs. County Government of Kisumu & 8 Others [2017] KESC 16 (KLR) the Supreme Court emphasizes that: “…It is worthy reiterating that in considering whether or not to extend time, the whole period of delay should be stated and explained to the satisfaction of the Court.” 15. With regards the memorandum of appeal and record of appeal filed by the applicant on 13th October, 2025 which Page 8 of 7

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the Page 9 of 7

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applicant prays that they be deemed duly filed, served and properly on record, I find that the said documents, as they are filed out of time and without leave of this Court, are a nullity. 16. In the result, I find that the application is without merit and is hereby dismissed. The memorandum of appeal and record of appeal filed on 13th October, 2025 are struck out. There will be no orders to costs. Dated and delivered at Nairobi this 25 th day of September, 2026 J. LESIIT ……………….…………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 10 of 7

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