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

and all other enabling provisions of the law, substantively seeking an order for extension of time to enable the applicants to lodge and Page 2 of 9

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serve a notice of appeal out of time against the ruling of the Employment and Labour Relations Court (ELRC) at Kericho in ELRC Case No.016 of 2022 delivered on 18th June 2026. 2. The grounds in support of the application are borne out on the face thereof and in the affidavit in support sworn by the applicant's Advocate on 31st July 2026. 3. In summary, the applicants aver and submit that immediately upon delivery of the impugned ruling of the Employment and Labour Relations Court (ELRC) at Kericho on 18th June 2026, they, being dissatisfied therewith, instructed their advocate to file a notice of appeal. The notice was duly uploaded on the e-Judiciary filing portal (CTS) on 22nd June 2026, well within the statutory period. However, the Deputy Registrar did not lodge the notice until 14th July 2026, by which time it was already out of time. 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. Page 3 of 9

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6. The 1st respondent opposes the application vide an affidavit sworn by Roba S. Duba, the National Secretary General, on 7th September 2026. It is averred that although the applicants attribute the delay in lodging the notice of appeal to the Court’s registry, they have not exhibited any registry acknowledgement, receipt, correspondence, system report, or affidavit from a registry officer confirming that the notice was properly submitted for lodgement on 22nd June 2026. In the absence of such evidence, the respondent contends that no explanation for the delay has been offered. 7. On prejudice, the 1st respondent submits that, together with other grievants, it stands to suffer prejudice should the application be allowed, having awaited full implementation of the judgment and payment of their salaries, benefits, and emoluments for a prolonged period. underscores that repeated compliance proceedings have already been The and necessary respondent contempt 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 Page 4 of 9

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their defaults without a candid explanation will further delay enforcement. 8. In rejoinder, counsel for the applicants reiterated that the Court Tracking System is accessible to all parties in any given matter, and accordingly the screenshot marked MC-3(b) constitutes sufficient evidence that the notice of appeal was successfully uploaded. Counsel further emphasized that, in any event, the 1st respondent has not challenged the validity of the said screenshot. 9. 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 Page 5 of 9

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takes into account in deciding whether to grant an extension of time Page 6 of 9

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are: first 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.] 10. 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) 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 suffered by the respondents if the extension is granted. vi) Whether the application has been brought without undue delay; and Page 7 of 9

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vii) Whether, in certain cases, like election petitions, public interest should be a consideration for extending time.” 11. 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 flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercisable.” 12. In the instant case and as regards the length of the delay, the impugned ruling was delivered on 18th June 2026. The notice of appeal was lodged at the court registry on 14th July 2026. The delay is approximately 27 days. The delay is not Page 8 of 9

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inordinate; however, a satisfactory explanation is what unlocks the court’s discretion. Page 9 of 9

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13. 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 although the notice of appeal was uploaded on the e-filing portal on 22nd June 2026, well within the statutory period following the ruling of 18th June 2026, the Court registry delayed in lodging the notice until 14th July 2026. The delay is thus attributed to the registry’s failure to promptly process the notice of appeal. A screenshot of the uploading of some pleadings in the judiciary was exhibited in the application. 14. In my view, the applicants acted diligently by uploading the notice of appeal on the e-filing portal on 22nd June 2026, merely four days after the impugned ruling of 18th June 2026, and well within the statutory period. The subsequent lodging on 14th July 2026 was occasioned not by any omission or indolence on the part of the applicants, but by the Court registry’s administrative delay in processing the notice. The delay was occasioned by circumstances beyond Page 10 of 9

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the applicants' control and this cannot be said to be unreasonable, implausible, or indicative of indolence. I am therefore satisfied Page 11 of 9

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that the delay has been satisfactorily explained and that a sufficient basis has been laid for the exercise of this Court's discretion. 15. 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. 16. 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, benefits, 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 suffer any prejudice that cannot be compensated by costs if the applicants are allowed to pursue their appeal. Page 12 of 9

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17. The totality of my findings, therefore, is that the applicants have demonstrated and satisfied 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 file the intended appeal. 18. Accordingly, the applicants’ motion dated 31 st July 2026 is merited, and the same is hereby allowed. I direct the applicants to file 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 Page 13 of 9

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