Governor, County Government of Vihiga v Dr. Amos Kutwa Koluwa & 5 others

Njoroge v Thika Farmers Group Ltd [2023] KECA 526 (KLR) to treat this as a typographical error and determine the application on its merits. Page 2 of 4

page 2 of 8

2. The intended appeal arises from a ruling of the High Court at Kakamega delivered by Hon. P.J. Otieno J. on 6 th March 2024 in Constitutional Petition No. E006 of 2021 (Consolidated). In that ruling, the High Court rectified and clarified its earlier judgment, ordering the Applicant to pay withheld salaries and gratuity to the 1st to 4th Respondents. 3. The Applicant contends that they have been diligent throughout the process. They filed a Notice of Appeal on 7th March 2024, just one day after the ruling, and applied for certified copies of the proceedings on the same date. The Applicant relies on a certificate of delay dated 11 th March 2026, issued by the Deputy Registrar, which certifies that the period from 7th March 2024 to 3rd March 2026, a total of 699 days, was required for the preparation and supply of the proceedings. They argue that under Rule 84, this time must be excluded from the computation of time for filing the appeal. 4. On the nugatory aspect, the Applicant submits that if the extension is denied, they will be unable to challenge a decree involving approximately Kshs. 30,000,000/- in public funds. They argue that if execution proceeds, the funds would be difficult to recover, rendering the intended appeal a futility. 5. The Respondents oppose the application, arguing that the delay is inordinate and spans over two years. They point out that a co- respondent in the lower court, the County Assembly of Vihiga, was able to file its Record of Appeal on 4th June 2025 using the same proceedings. They Page 3 of 4

page 3 of 8

contend that the proceedings were available to the Applicant nearly a year before this application was filed. They Page 4 of 4

page 4 of 8

further argue that they have suffered grave prejudice, having received no salaries since 2021. 6. The principles for granting an extension of time under Rule 4 are well settled in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 and Fakir Mohamed v Joseph Mugambi & 2 others [1988] KLR 645. These include the length of delay, the reason for the delay, the arguability of the appeal, and the degree of prejudice. 7. In respect of the length and reason for the delay, while the delay appears long on its face, the Applicant has produced a Certificate of Delay from the Registrar covering the period until 3rd March 2026. Under Rule 84(1) of the Court of Appeal Rules, time certified as necessary for the preparation of proceedings is excluded. The Applicant applied for these proceedings within the required 30 days. Consequently, I find that the Applicant has complied with the administrative requirements of the Rules and that the delay is formally explained by the court's own registry. 8. On arguability and the nugatory aspect, the Applicant intends to raise significant jurisdictional questions regarding whether a Constitutional Court can grant orders for salaries and gratuity, which they argue fall under the exclusive purview of the Employment and Labour Relations Court. These are arguable points. Furthermore, as held in Mukuma v Abuoga [1988] KLR 625, substantial loss occurs when the status quo is not preserved, particularly where public funds are involved. 9. Further, I note that the County Assembly of Vihiga has already filed its Record of Appeal. Denying the Governor Page 5 of 4

page 5 of 8

an extension would lead to piecemeal litigation, as the appeal would proceed with only Page 6 of 4

page 6 of 8

one appellant while the party responsible for the actual payment, the Executive, would be left without a right of audience. To avoid a multiplicity of future applications for stays of execution and other interlocutory orders, which would only delay the finality of this case further, it is in the interest of justice to include the Governor in the existing appellate proceedings. 10. From the foregoing, the Certificate of Delay provides a sufficient legal basis for the exclusion of time under Rule 84 of the Court of Appeal Rules. When balanced against the need for administrative efficiency and the protection of public funds, I find it just to exercise my discretion in favour of the Applicant. Accordingly, I make the following orders: a. The application for extension of time to file the Record of Appeal is hereby granted. b. The Record of Appeal filed along with the Notice of Motion is hereby deemed properly filed within the prescribed period. c. Costs of this application shall abide by the outcome of the intended appeal. Dated and delivered at Kakamega this 17 th day of July, 2026. R. NGETICH ........................... ............... JUDGE OF APPEAL I certify that this is a true copy of the original Page 7 of 4

page 7 of 8

Signed DEPUTY REGISTRAR Page 8 of 4

page 8 of 8