Nyambega v Nairobi Water & Sewerage Company

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judgment of the Employment and Labour Relations Court (Rika, J.) delivered in April, 2023 in ELRC Cause No. 203 of 2018, the applicant wishes to appeal against the said decision; that the applicant was granted the go-ahead to file and serve his memorandum and record of appeal; that the memorandum and record of appeal had been prepared, sent to the court registry and assessed at Kshs. 100,200 and Kshs. 6000, respectively; that the applicant is unable to pay the said court fees as he is unemployed. 3. That as a result of the applicant’s inability to pay the assessed fees, he seeks the court to order the Deputy Registrar of the court do conduct an inquiry into his pauperism and file a report; that the court be pleased to grant the applicant leave to appeal as a pauper; that the court do extend the period within which the applicant ought to file and serve his memorandum of appeal, record of appeal against the impugned judgment; the intended appeal has very high chances of success as per the memorandum of appeal; the application is made in good faith with the sole interest of justice and that the respondent will not suffer any prejudice. 4. The application is unopposed, and parties did not file submissions. 5. There is a report on record by the Deputy Registrar dated 12th June 2024. Based on the status report, the Deputy Registrar found that the applicant, a former Page 3 of 7 18-year

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employee of Nairobi Water & Sewerage Company, is currently an unemployed casual Page 4 of 7

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labourer whose unstable daily wages from odd tap-repair and plumbing jobs leave him living hand to mouth. Additionally, noting that he was previously represented on a pro bono basis by Kituo cha Sheria and Seth Ojienda advocate, the court concluded that he is genuinely unable to afford the court fees required to file his appeal at the moment. 6. I have considered the application, the affidavit in support thereof, the Deputy Registrar’s report and the material placed before the Court. The application is essentially twofold. First, the applicant seeks leave to lodge his intended appeal without payment of the requisite court fees on the ground of his inability to pay. Secondly, he seeks extension of time within which to file and serve his memorandum and record of appeal. 7. I note at the outset that although the application invokes rule 115 of the Rules, the applicable provision is rule 120, which provides for relief from fees and security in civil appeals. The provision gives the Court discretion, where it is satisfied that an applicant lacks the means to pay the requisite fees or security for costs and that the intended appeal is not without reasonable possibility of success, to permit the appeal to be lodged without prior payment of the requisite fees, or on payment of such lesser amount as the Court may direct. The Registrar is also entitled to be heard on such an application. Page 5 of 7

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8. The question of the applicant’s means has, in this case, been subjected to an inquiry by the Deputy Registrar. I am satisfied that the report applicant’s inability Page 6 of 7 sufficiently establishes the

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to pay the assessed fees. The fees assessed for the memorandum and record of appeal are Kshs. 100,200 and Kshs. 6,000 respectively. In the circumstances disclosed by the Deputy Registrar’s report, requiring the applicant to raise those sums before accessing this Court would, in effect, shut the door of justice against him on account of his financial circumstances. 9. The other consideration under rule 120 is whether the intended appeal is without reasonable possibility of success. At this stage, the Court is not required to undertake a detailed examination of the merits of the intended appeal. The applicant has expressed his dissatisfaction with the judgment of the Employment and Labour Relations Court delivered on 6th April 2023 and has already prepared his memorandum and record of appeal, which were presented to the registry and assessed for filing purposes. Having considered the material before me, I am unable to conclude that the intended appeal is without reasonable possibility of success. 10. Accordingly, I am satisfied that the applicant has met the requirements for relief under rule 120 of the Rules. I therefore find that the applicant ought to be permitted to lodge and prosecute his intended appeal without prior payment of the requisite court fees, subject to the terms set out in the orders herein. 11. The second issue is whether the applicant should be granted Page 7 of 7

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an extension of time within which to file and serve his memorandum and record of appeal. Rule 4 of the Rules confers Page 8 of 7

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upon the Court a discretionary power, on such terms as may be just, to extend the time limited by the Rules or by a decision of the Court or a superior court for the doing of any act authorised or required by the Rules. The discretion is unfettered, but must nevertheless be exercised judicially and upon consideration of the circumstances of each case. 12. The principles applicable to the exercise of that discretion are well settled. The Court considers, among other factors, the length of the delay, the reason for the delay, the chances of the intended appeal succeeding if the extension is granted, and the degree of prejudice that the respondent is likely to suffer. These factors are not exhaustive. See Mohamed v Mugambi & 2 Others (Civil Application 332 of 2004) [2005] KECA 340 (KLR). The ultimate consideration is whether, in the circumstances of the case, the interests of justice favour the grant of the extension. 13. In the present matter, the judgment sought to be challenged was delivered on 6th April 2023, while the present application was filed on 21st February 2024. There is therefore a period of delay that requires explanation. The applicant explains the delay principally on the basis of his inability to raise the requisite filing fees. His explanation is not merely an assertion. It is corroborated by the inquiry conducted by the Deputy Registrar, whose report confirms that the applicant is presently unemployed, survives on unstable casual earnings, and is genuinely unable to afford the fees required to file the appeal. Page 9 of 7

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14. I also take into account the fact that the applicant has demonstrated an intention to pursue the appeal. He states that the memorandum and record of appeal have already been prepared and presented to the registry for assessment. The assessed fees are what he has been unable to raise. This conduct is, in my view, inconsistent with an applicant who has abandoned or deliberately delayed the intended appeal. Rather, it demonstrates that the financial circumstances which have now been independently confirmed by the Deputy Registrar constituted a real impediment to the filing of the appeal. 15. As regards the arguability of the intended appeal, I have already found that the intended appeal is not without reasonable possibility of success. The respondent did not file a response or submissions and has not demonstrated any prejudice that it would suffer if the applicant is allowed to pursue the intended appeal. While the respondent is entitled to enjoy the fruits of the judgment in its favour, that right must, in the circumstances, be balanced against the applicant’s right of access to the appellate process. 16. Taking all factors into account, I am persuaded that this is an appropriate case in which to exercise the Court’s discretion in favour of the applicant. In the circumstances, I consider that the interests of justice would be better served by allowing the applicant an opportunity to have his intended appeal heard on its merits. Page 10 of 7

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17. Accordingly, the notice of motion dated 21 st February 2024 is hereby allowed on the following terms: a. The applicant be and is hereby permitted to lodge and prosecute his intended appeal without prior payment of the requisite court fees. b. The time within which the applicant is required to file and serve his memorandum and record of appeal against the judgment and decree of the Employment and Labour Relations Court at Nairobi (Rika, J.) delivered on 6 th April 2023 in ELRC Cause No. 203 of 2018 is hereby extended. c. The applicant shall file and serve the memorandum and record of appeal within thirty (30) days from the date of delivery of this ruling. d. There shall be no order as to costs. Orders accordingly. Dated and delivered at Nairobi this 16th day of September, 2026. ALI-ARONI ………………………………... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 11 of 7

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