Chesang & 5 others v Kenya County Government Workers Union & another

2. The grounds in support of the application are borne out on the face thereof and in the adavit in support sworn by the applicant's Advocate on 31st July 2026. 3. In summary, the applicants aver that the delay is attributable to the honest mistake of their counsel. On 22nd June 2026, counsel led a notice of appeal against both the ruling of 6th February 2026 erroneously indicated as 26th February 2026 in the notice, and the ruling of 18th June 2026. Counsel acted under the bona de belief that the adjudication process was continuous, and that the notice of appeal ought properly to have been lodged after the sentencing ruling of 18th June 2026. 4. It is contended by the applicants that the instant application has been brought promptly and in good faith. 5. It is further contended that no prejudice shall be occasioned to the respondents if the orders sought are granted. 6. The 1st respondent opposes the application vide an adavit sworn by Roba S. Duba, the National Secretary General, on 7th September 2026. It is averred that the applicants’ explanation for the delay in ling the notice of appeal, namely, that counsel believed the contempt nding of 6th February 2026 and the subsequent sentencing of 18th June 2026 constituted one continuous decision, is not borne out by the record. The respondent contends that it was manifestly clear that the ruling of 6th February 2026 and that of 18th June 2026 were distinct and separate decisions. Accordingly, it is urged that no satisfactory explanation has been oered for the delay in ling the notice of appeal and the present application. 7. The 1st respondent further avers that nothing prevented the applicants from lodging a protective notice of appeal against the ruling of 6th February 2026 while awaiting the sentencing proceedings. 8. On prejudice, the 1st respondent submits that, together with other grievants, it stands to suer prejudice should the application be allowed, having awaited full implementation of the judgment and payment of their salaries, benets, and emoluments for a prolonged period. The respondent underscores that repeated compliance and contempt proceedings have already been necessary to secure obedience to the Court’s orders. The applicants already enjoy a stay of the ruling and order issued on 18th June 2026, and regularising their defaults without a candid explanation will further delay enforcement. 9. In rejoinder, counsel for the applicants reiterated that the delay was occasioned by counsel and not by the applicants and that any inadvertent mistake should not be visited on the litigants. 10. I have considered the application, grounds in support thereof, the submissions, as well as the law. Rule 4 of the Court of Appeal Rules does not provide for factors that the court ought to consider in an application for extension of time, but courts have devised appropriate principles to be applied in achieving a ‘just’ decision in the circumstances of each case. The case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999], which is the locus classicus, laid down the parameters as follows: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: rst the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”[Emphasis supplied.] https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1997/eng@2026-09-30 2

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11. 12. The Supreme Court has, in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others, SC Application No. 16 of 2014; [2014] eKLR, further distilled the principles which courts ought to consider when determining applications for extension of time. These principles are: “ i) i) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court. ii. A party who seeks an extension of time has the burden of laying a basis to the satisfaction of the court. iii. Whether the court should exercise the discretion to extend time is a consideration to be made on a case-by-case basis. iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court. v. Whether there will be any prejudice suered by the respondents if the extension is granted. vi. Whether the application has been brought without undue delay; and vii. Whether, in certain cases, like election petitions, public interest should be a consideration for extending time.” These principles guide my determination herein. As regards the length of delay, in Sentrim Kenya Limited v CFC Stanbic Bank Limited [2021] KECA 648 (KLR), this Court stated that there is no maximum or minimum period of delay set out under the law. However, the reason or reasons for the delay must be reasonable and plausible. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, this Court stated: “ The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s ow of discretionary favour. There has to be valid and clear reasons upon which discretion can be favorably exercisable.” 13. In the instant case and as regards the length of the delay, the impugned ruling was delivered on 6th February 2026. The notice of appeal was thereafter lodged on 22nd June 2026. The delay is approximately 4 months and some days. The delay is inordinate; however, a satisfactory explanation is what unlocks the court’s discretion. 14. As stated in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet (supra), a plausible and satisfactory explanation is what unlocks the court’s discretion. In the present case, the applicant avers that the delay in lodging the notice is attributable to the honest belief by counsel that the adjudication process was continuous and therefore the notice of appeal against the ruling of 6th February 2026 ought to have been led after the sentencing ruling of 18th June 2026. The applicants argue that the counsel's mistake should not be visited upon them. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1997/eng@2026-09-30 3

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15. This court in Belinda Murai & Others v Amos Wainaina [1979] eKLR noted as follows: “ a mistake is a mistake. It is no less a mistake because it is an unfortunate slip. The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to have known better.” 16. In my view, the error committed by counsel was an honest mistake. Such inadvertence should not be visited upon the litigants so as to close the door of justice against them. I am satised that the delay has been satisfactorily explained and that a sucient basis has been laid for the exercise of this Court’s discretion in favour of the applicants. 17. As to the arguability or otherwise of the intended appeal, it would not be in my place to determine the same sitting as a Single Judge, and I will therefore not delve further into this issue. 18. Finally, on the issue of prejudice, the 1st respondent submits that it, together with other grievants, has endured prolonged delay in the implementation of the judgment and payment of salaries, benets, and emoluments, and that repeated compliance and contempt proceedings have been necessary to secure obedience to the Court’s orders. While this concern is legitimate, the prejudice alleged is not irreparable. It is trite that prejudice occasioned by delay may, in appropriate circumstances, be adequately compensated by an award of costs. In the circumstances, I am not persuaded that the respondents will suer any prejudice that cannot be compensated by costs if the applicants are allowed to pursue their appeal. 19. The totality of my ndings, therefore, is that the applicants have demonstrated and satised the existence of the principles for consideration in the exercise of my unfettered discretion pursuant to Rule 4 of this Court to extend time within which to le the intended appeal. 20. Accordingly, the applicants’ motion dated 28th July 2026 is merited, and the same is hereby allowed. I direct the applicants to le and serve the Notice of Appeal, Memorandum of Appeal and Record of Appeal within thirty (30) days from the date hereof, failure to which the orders herein shall be vacated. Costs of the application to abide by the outcome of the appeal. DATED AND DELIVERED AT NAKURU THIS 30TH DAY OF SEPTEMBER, 2026. AHMED ISSACK ………….……..…………… 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/2026/1997/eng@2026-09-30 4

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